The Companies Who Support Censoring The Internet

from the censorship-is-good-for-business dept

A group of companies sent a letter to to Attorney General Eric Holder and ICE boss John Morton today (with cc's to VP Joe Biden, Homeland Security boss Janet Napolitano, IP Czar Victoria Espinel, Rep. Lamar Smith, Rep. John Conyers, Senator Patrick Leahy and Senator Charles Grassley), supporting the continued seizure of domain names they don't like, as well as the new COICA censorship bill, despite the serious Constitutional questions raised about how such seizures violate due process and free speech principles. While many reporting on this letter refused to actually post a copy of the full letter, kudos to Greg Sandoval over at News.com for doing so (full text also included after the jump on this post).

The companies try to present a united front that censoring the internet is a good thing. It includes the usual suspects of Viacom and NBC Universal on the content side and Louis Vuitton and Tiffany on the counterfeiting side, but there are a few other interesting names: such as Monster Cable (never met an IP law it didn't want to abuse, apparently), the NBA, MLB and NFL (sports leagues unite in censorship!) as well as Voltage Pictures, famous for suing thousands of fans for downloading Hurt Locker. Activison, which has become increasingly aggressive on IP issues lately is on the list as well, of course. Anyway, here's the full list of companies that support censoring the internet, because they're too lazy to compete in the marketplace or innovate when that market changes:

Nike - Beaverton, OR

Achushnet - Fairhaven, MA

Curb Music Publishing - Nashville, TN

NBC Universal - New York, NY

Viacom - New York, NY

Callaway - Carlsbad, CA

Cleveland Golf - Huntington Beach, CA

Rosetta Stone - Arlington, VA

Activision - Santa Monica, CA

Adidas Group - Portland, OR

Xerox - Norwalk, CT

Hastings Entertainment, Inc. - Amarillo, TX

Fortune Brands - Deerfield, IL

Coty Inc. - New York, NY

EDGE Entertainment Distribution - Streetsboro, OH

Oakley, Inc. - Foothill Ranch, CA

PING - Phoenix, AZ

Louis Vuitton - New York, NY

D'Addario and Company - Farmingdale, NY

Monster Cable Products, Inc. - Brisbane, CA

Tiffany and Co. - New York, NY

Farouk Systems, Inc. - Houston, TX

Beam Global - Deerfield, IL

Chanel USA - New York, NY

True Religion Apparel, Inc. - Vernon, CA

Concord Music Group - Beverly Hills, CA

Village Roadshow Pictures - Beverly Hills, CA

National Basketball Association - New York, NY

National Football League - New York, NY

The Collegiate Licensing Company/IMG College - Atlanta, GA

Anderson Merchandisers - Amarillo, TX

Trans World Entertainment Corporation - Albany, NY

Timberland - Stratham, NH

Major League Baseball - New York, NY

Lightening Entertainment/Mainline Releasing - Santa Monica, CA

Sierra Pictures - Beverly Hills, CA

Voltage Pictures LLC - Los Angeles, CA

Worldwide Film Entertainment LLC - Westchester, CA

Nu Image, Inc. - Los Angeles, CA

Burberry Limited - New York, NY

Big Machine Records - Nashville, TN

The Little Film Company - Studio City, CA

Columbia Sportswear Company - Portland, OR

These companies are clearly trying to protect their own business interests, but it seems reasonable to let them know that you don't appreciate them seeking to censor the internet. If you haven't been following this story, and want to understand the details, we've discussed why COICA is all about censoring websites without due process and in violation of the First Amendment. We've also discussed how the ongoing (pre-COICA) domain name seizures were riddled with serious errors that appear to violate the law as well, including seizing the domains of blogs regularly used and recognized within the music industry based on evidence involving songs sent by the record labels themselves.

And, of course, none of this is to say that violating copyright or trademark laws should be allowed. But we have a system to deal with such things: you file a lawsuit, you have an adversarial hearing in a courtroom (i.e., due process) and you let both sides present their case. COICA and these domain seizures look to avoid all of that. And that's a big, big problem. That these companies would support such censorship and leapfrogging over due process suggests that they're companies not worth doing business with.

We run companies large and small that represent diverse aspects of America's intellectual property community. While our employees live in different regions of the country, and work to produce a variety of goods and services, they have several important things in common - they work hard, they are committed to quality and innovation and they welcome competition. However, allowing others to unfairly compete by stealing the ideas, innovations and intellectual property rights created by our employees cannot be tolerated. This theft diminishes our ability to keep and create jobs, and makes it far more difficult to attract the capital needed to invest in new products and services. In order to protect our free enterprise system, and the standard of living it has contributed to our nation, it is critical that we multiply our efforts to identify and punish the criminals who steal what we create and produce.

Thus, we appreciate the effort and energy behind Operation in Our Sites. The actions announced on November 29, 2010 once again demonstrated that, just as in the physical world, prosecutors and courts can judiciously assess evidence and distinguish between legitimate businesses and criminal enterprises that flout the law and profit from the ingenuity of others. We believe that the online marketplace can only work for consumers and creators if there is respect for property rights and the rule of law - and urge you to continue to act against the kinds of domains that you have targeted. Unfortunately, there are far too many sites stealing from our businesses but we believe that your efforts will drive consumers to the many legitimate online ventures and services that we have worked hard to foster and support.

We encourage you to work with your colleagues in the Administration and the Congress toward enactment of the principles central to S. 3804 - the Combating Online Infringement and Counterfeits Act. The legislation crafted by Senators Leahy and Hatch was unanimously approved by the Senate Judiciary Committee and will undoubtedly be reintroduced this congress. The proposal expounds upon the law enforcement techniques at the heart of "Operation In Our Sites" and will ensure that rogue sites cannot evade U.S. jurisdiction by escaping offshore to foreign-based registrars, registries and country codes in order to peddle stolen American intellectual property back into the U.S. market. In addition, the Leahy-Hatch proposal provides an entirely new level of protection for U.S. rights holders by establishing the legal framework necessary to disrupt the business models of the illicit, offshore sites by starving them of the financing, advertising and access to consumers upon which they depend. The carefully balanced measure would allow American law enforcement officials and U.S. courts to deny thieves the ability to use the Internet to enter the U.S. market and undermine our businesses while reaping financial gain for themselves.

We hope that you will continue dedicating resources to Operation in Our Sites and work toward the Obama Administration's endorsement of the Leahy-Hatch legislation.

Thanks for the list

of companies I can avoid from now on. Some of them I've utilized in the past, but won't continue my relationship with them. Some I haven't used... ever (Nike shoes don't fit me right).

Your best bet is to contact your representatives in congress to get this brought to the forefront of conversation. Complaining in the comment section of a blog is one thing, but take it to their pocketbooks and their lobbyists. This last election has many legislators nervous.

Activision-Blizzard...

...Really doesn't surprise me at all given their history. They've just recently gone for those three over a hack to Starcraft, there's Bobby Kotick's entire stance on micromonetizing everything he can, then there's the fact that they went after another person for hacking Warcraft by making a bot. WTF Blizzard?

Hastings actually comes as a shock...

They deal in DVDs and CDs along with a great used book market...

Oh wait, DVDs and CDs. I get it now. They don't want to compete against Netflix or don't know how.

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wrong impression

"...too lazy to compete in the marketplace or innovate when that market changes." gives the wrong impression. It's not fat cat sloth that leads them to their position. It's a much more active and malevolent culture of corruption that prompts it.

It's cheaper to buy favorable legislation and to litigate your competitors out of business than to actually compete.

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Hey you, troll harder!

What are you, lazy? Put your back into it!

No good lazy sloppy brainless trolls these days, science dammit!

Well, I suppose if you want something done right...

Ah-hem.

[whiney AC voice]"What's to big deal? They're stealing our jobs, and I think it's great the government wants to look after MY best interests, because everybody knows people are too stupid to look after themselves. Yay gov! Go ahead and take my freedoms away, I wasn't using them anyhow."[/whiney]

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Ping, for example, is not what I would call a large business. The company, Karsten, is located in Phoenix, appears to be privately owned, and has about 1,400 employees. Not small, but certainly not one of the "big boys".

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I was surprised myself. Other than Viacom, I don't think I've had anything to do with any of those companies for a long time. In fact, the most recent dealing I've had with any of them (again, other than Viacom) was renting I am Legend a few years back.

I don't know if I should be proud, or start worrying that something is wrong with me.

Here's my rebuttal letter. I encourage all innovative companies to read and if they agree, to sign this letter!

We run companies large and small that represent diverse aspects of America’s intellectual property community. While our employees live in different regions of the country, and work to produce a variety of goods and services, they have several important things in common – they work hard, they are committed to quality and innovation and they welcome competition. However, allowing a small group of companies to prevent fair competition in the marketplace cannot be tolerated. Supporting draconian intellectual property laws and punishing consumers for freedom of choice diminishes the market’s ability to freely innovate and build upon past successes and failures, and cannot be tolerated. In order to protect our free enterprise system, and the standard of living it has contributed to our nation, it is critical that we multiply our efforts to encourage development of new marketplaces, identify and break down the barriers created from unsustainable business models, and provide even greater freedom to consumers for what we create and produce.

Thus, we are appalled by the effort and energy behind Operation in Our Sites. The actions dictated on November 29, 2010 once again demonstrated that, just as in the physical world, defendants and courts are presented with indefensible arguments and poor evidence to distinguish between legitimate innovative businesses and archaic and failed enterprises that abuse the law and profit from denying the ingenuity of others. We believe that the online marketplace is the rightful domain of consumers and our task as creators is to respect their voice – and urge you to stop acts against the kinds of domains that you have targeted without due process nor respect for property rights and the rule of law. Fortunately, there are many options available for sites to continue to provide creative business ideas, and we believe that your efforts will drive consumers further away from failed online ventures and services that have worked hard to remain in business -- without fostering customer support.

We encourage you to work with your colleagues in the Administration and the Congress toward defeat of the principles central to S. 3804 – the Combating Online Infringement and Counterfeits Act. The legislation crafted by Senators Leahy and Hatch was unanimously approved by the uninformed Senate Judiciary Committee and roundly condemned by numerous organizations and media outlets, and will undoubtedly be reintroduced this congress. The proposal continues to pervert law enforcement techniques at the heart of “Operation In Our Sites” and attempts to ensure that private corporations can force the government to stifle competition and fair use without judicial oversight and without fairness under the law. The legislation will ensure that targeted sites will evade U.S. jurisdiction by creating a new class of registrar and domain name system unimpeded by governmental interference, regardless of source. In addition, the Leahy-Hatch proposal provides yet another level of protection for entrenched U.S. rights holders by establishing the legal framework necessary to protect failed business models of domestic sites and starving legitimate and creative businesses of the right to compete and thrive in a fair and level marketplace that all consumers can access. The dangerously imbalanced measure would allow American law enforcement officials and U.S. courts to create an island of stifled innovation and propel thriving businesses away from the Internet within the U.S. market while further smothering consumer choice and innovation so as to allow select businesses to reap diminishing financial gain for themselves.

We hope that you will cease dedicating any resources to Operation in Our Sites and reconsider support for the rule of law and for due process, and work toward legislation for a free, balanced and open marketplace, by the consumer, and for the consumer.

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The government steals at least 20% your paycheck everyday. And, they don't even use it, they GIVE the money away to a certain group of people. In essence, thanks to "laws" which were bought and paid for, there's a group of people out there who are constantly entitled to a big chunk of YOUR money and it's all nice and "legal".

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If by "defending themselves from thievery" they bribe corrupt politicians to pass laws that only benefit dying legacy industries and take away constitutional rights and you don't think we won't speak up, how dare you?

...

I love how the shills try to act like trampling constitutional rights is valid in the pursuit of profits.

If somebody tried to illegally steal half my paycheck throught a website I'd do what I could to shut them down to

Did you forget the part about your tax dollars being used to prop those industries up? Or does that not bother you because lobbying and political campaign contributions are legal?

What kind of Bizarro World do these people come from? Most of everything released these days is pure crap that's not even worth stealing. I can imagine the future thanks to COICA: more audiotuned teenagers, more sequels to Tony Hawk: Ride, more roided up players.

What about the people barely making ends meet? We can't get to work on skateboard controllers, feed ourselves on plastic discs, or keep ourselves warm with sports jerseys. If the corporates keep this up, neither can they.

"and they welcome competition"

And by "welcome competition," do they mean muting charity videos? You know your business model is over and done if you think that a video of a toddler dancing to a barely audible Prince song is a threat.

If the Internet routes around censorship, does this act really matter?
In reality, this act passes, and DNS is seen as legacy, and the world moves on.
Why should people object? It's a complete waste of our tax dollars attempting to plug a dike with a thumb.

Okay, so here is what you have to do in order to support the cause and stick it to "the man":

1) Don't watch any major league sports. Even the "good" ones have Nike equipment and sponsored players. So stop it now!

2) Don't watch or support college anything, because they have the same connections.

3) Don't listen to any music. It is very possible that it was made with a D'Addario string or was somehow connected by a monster cable. Don't take a chance!

4) Don't watch TV, or watch any movies. There are plenty of deals here where people from the nasty villain companies may have a finger in everything you enjoy, distribution rights on it, or may even be financing it through subsidiary companies or proxies. Don't take a chance!

5) Don't play sports. Some of the other guys may wear Nike shoes or use Ping Golf clubs, or they may be wearing apparel made or licensed by one of these companies. Don't take a chance.

I could go on. Safest thing to do is stay home, sleep on your home made straw mat, keep your doors and windows locked, and disconnect yourself from the internet, because you never know when they are going to get you. Plus, horrors or horrors, they will have entirely shut all the good parts of the internet off anyway, so why bother even trying?

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Your first amendment rights stop where my nose starts. First Amendment doesn't mean you have the right to rip everyone else off in the name of free speech. It certainly doesn't give you a right to profit from it.

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ost of everything released these days is pure crap that's not even worth stealing.

So stop stealing it.

Arguments like that always make me laugh, because if the stuff was so bad and so undesirable, there would be no piracy because nobody would want it.

They welcome competition. They welcome companies and individuals coming forward with their own unique products and ideas and competing in the market place as equals. They don't want to compete against themselves, with you ripping off their products and designs and selling it back as a cheap knockoff for half the price.

Re: Infringing Participles

Their software is heavily pirated, which is probably the reason. I'm still a little surprised to see their name here, though - last I heard, they were being really smart about their strategy and focusing on developing their online community offering where people pay by the year and get to take real language classes by webcam, and get matched up with conversation partners who speak the language you are trying to learn (while they are trying to learn yours). After all, the only real way to master a language is by using it with other people.

I do hope that despite this they continue to focus on developing awesome services like that, with experiences that can't be replicated by piracy... it seemed like they were approaching the problem from exactly the right angle.

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It does, however, give you the right to an extremely high bar of judicial scrutiny if any of your speech is to be deemed unprotected. Not only do COICA and the seizures walk right under the bar, they get down and crawl for extra clearance.

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I can see how this could be abused.

Claim some IP is available on wikileaks. Claim a political opponent's website used copyrighted content - and maybe they inadvertently used a picture that they didn't hold the copyright to and immediately removed it once brought to their attention.

As usual I haven't read the bill and don't know the mechanism for shutting that site down for "piracy" (hopefully a court order is involved at least) but if it can be abused, it will be.

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Should I type slowly so you can understand?

Nike makes a product. The pirates make a knock off version of it, complete with Nike logos and all. It looks like Nike stuff. They sell it on ebay at 1/10th the price, "special discount on end of line material". They stole the design, the logo, and the good will of Nike.

Worse yet, the shoes fall apart in a short period of time, making the buyer think that Nike stiff them, so they won't buy Nike again.

The web is a marketing tool and it works very well for making people think they are buying the real thing when they really are not.

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Actually, it is very easy to get your material on the radio. Getting your material on the radio in markets all over the world? Well, then you have to compete. I guess you don't mind a little competition. A level playing field doesn't mean they pay for your to get there for nothing. You have to work for it.

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Here is what people really need to do.

- Keep on the good work and don't give money to a-holes.
- Use Miro for your TV needs and check the licenses, if it is not a liberal license don't consume it, it is bad for ya.
- Use services like Jamendo to find good music.
- If you need a book you can go to LibriVox and get tones of the stuff over there.

But the basic thing is do not in any circumstance give money to them ever.

Look at all those posts talking about the "freetards" that is gold, they are angry and afraid you are winning don't stop now LoL

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Mike Masnick will defend piracy at any cost, including lying up and down about a bill designed to protect original creations.

Again, if you actually read what I wrote (hard for some folks to do, I admit) you would see that I have not defended "piracy" at all. I'm just asking why we can't use existing laws, as designed, which both protect the First Amendment and due process.

That's got nothing to do with defending piracy. As was made clear with the dajaz1 seizure, plenty of non-infringing material was blocked due to this move -- which is blatant prior restraint -- and the site operator was never even told about the whole thing (to date, as far as I'm aware, DHS still has not given them an explanation for the seizure).

These sites may be guilty of contributory infringement or direct infringement in some way or another, but we have a system to figure that out: and it's called a trial.

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I love the way people try to act like these groups dont have a valid point.

They don't.

The web allows people to steal their product with little to no repercussions, of course there gonna fight back.

This is false. There are existing laws with which they can use to fight back, and those laws have serious repercussions (have you seen the people who now owe about a million dollars for sharing some songs?)

If somebody tried to illegally steal half my paycheck throught a website I'd do what I could to shut them down to

No one's stealing anyone's paycheck. But if someone is infringing on someone's trademarks or copyright, there are existing trademark and copyright laws that can be used. This letter has nothing to do with any of that. Instead, it's asking the government to go in and seize domains with little evidence (or often simply false evidence).

Seriously, rather than bitching and moaning about "stealing" in the comments of a blog, why don't you just take the free advice and consultancy that Mike is giving you. Investigate your options, run a pilot program and then learn real lessons.

With the amount of money these industries spend on lawyers, you could easily pilot 2 or 3 business models and see what works best. If it doesn't work, you learn the lesson and move on to a different business plan. People may not pay to see a movie, but people will pay for physical items with large markups related to their favorite movie. Businesses will pay to have their products and services featured in movies and these advertising contracts are worth more when a movie is heavily pirated.

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I love this sort of thing because you are trying to tie the 1st amendment onto the back of this stuff. The sites were not blogs, you need to really get over that idea.

The sites has a small blog component. But the sites were, based on what was in Google cache, mostly file trading sites, a forum, and a system for sharing pirated materials, remixes, and so on. The blog component appeared to be a very small part of the sites. I examined two of the rap sites in google cache, and that was pretty much what was there. Lots of downloads, lots of forum, a little blog.

Perhaps if you spent a little time to become familiar with what the sites actually had, as opposed to accepting the site owner's version verbatim, you might realize that the government had probable cause to execute the warrant.

As for the "just sue them", please to remember all the of the difficulties of attempting to figure out jurisdiction ownership, and the like. Trying to sue some of these people is like herding cats and feathers. It isn't going to happen. Where are the owners? If I remember correctly, one or more of the sites in question (in the whole group shut down) was run from Turkey. Good luck suing him. What court would you use? US? Turkey? World Court in the Hague?

Sorry, but you are seriously glossing over a whole bunch of things to try to make this a 1st amendment issue when it really isn't. The site owners are still free to publish their blogs anywhere and any time they like. They just can't use those domain names, in the same manner that when you get stopped with a car full of drugs, your car gets impounded as evidence, and you don't get it back any time soon.

I notice their blogs couldn't be that important, because I have seen no reports of them turning up anywhere else.

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Seizing domain names is prior restraint. That's a violation of the First Amendment.

I found some Second Circuit language directly on point holding that domain names are not per se protected speech. In other words, domain names are not presumptively protected by the First Amendment (well, at least not in CT, VT, and NY). If that's the case, I don't see how it's possibly prior restraint.

Domain names and gTLDs per se are neither automatically entitled to nor excluded from the protections of the First Amendment, and the appropriate inquiry is one that fully addresses particular circumstances presented with respect to each domain name.

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Well I don't think it really matters in the end.

Piracy will continue to flourish, people will find new ways to flaunt those laws in the face of people who want to stop them and a large part of the population that was buying probably will go elsewhere where there are good enough free and open alternatives that are less demanding and let them enjoy things more and make use of it.

These discussions are of little consequence for the changing environment, is like trying to negate that the climate will change, people can deny it all they want, but it still going to happen, in one way or another.

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You have tunnel vision don't you?

Domain names and gTLDs per se are neither automatically entitled to nor excluded from the protections of the First Amendment, and the appropriate inquiry is one that fully addresses particular circumstances presented with respect to each domain name.

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The response at 66 is classic con-flan-tation. I have personally never seen a website selling counterfeit golf clubs, sportsware, etc. that includes a blog/forum/community section. These sites are only able to operate and peddle their wares as long as people are led to believe they are really purchasing a real pair of Nikes, Ping Clubs, and a host of other well known consumer products.

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The First Amendment apparently protects the right to "not speak" for websites that choose to remain silent and let purchasers labor under the impression that they are purchasing genuine goods manufactured to the quality control standards imposed by the trademark holders.

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To explain a bit more... The court is saying that a domain name is neither presumptively protected speech, nor is it NOT presumptively speech. This may sound like a contradiction, but it's not. The other possibility is that it's not protected speech at all. What's the court makes perfectly clear is that under any possible scenario, a domain name is NEVER presumptively protected speech. The Supreme Court's First Amendment exception to Fourth Amendment seizures only applies to presumptively protected speech. Domain names don't qualify for the exception since they aren't presumptively protected speech. Simple really.

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Are you saying the companies protecting their trademarks are "censoring the internet"? I thought that phrase only applied to those protecting their copyrights.

No, I'm saying that advocating seizing domains and shutting down websites without an adversarial trial beforehand via government fiat is censorship.

I never said that protecting trademarks is censoring the internet. In fact, I thought I said clearly *in this very post* that I have no problem with them protecting their trademarks, so long as they allow for due process and a adversarial hearing before hand.

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What the court said was just this in simple terms:

A domain name can be protect by the First Amendment but it is not automatic, which means it needs someone to decide if it will be protected or not and that probably is the judge in a case by case basis.

That is what it says in all its gory details that you selectively choose to ignore for some reason.

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There's a great, well-researched post on Copyhype that addresses the First Amendment issues of these domain name seizures:

Weird. Hart's analysis seems to get weaker and weaker each time he digs in deeper and deeper. Disappointing. I enjoyed his earlier works, but now it feels like he staked out a position and has to defend it at all costs, even after he knows that he made mistakes.

That piece has so many mistakes I'm debating if it's even worth doing yet another rebuttal. Probably not.

But, just a tidbit: Hart plays the same trick you tried recently, where you say that the domain name seizure does not impact the speech of the site, which ignores that the entire argument for seizing these domains was based on the content of the sites. I can't see how you can have it both ways. You can't say "we're just seizing the domain, so that doesn't impact the speech on the site" at the same time that the very reason that DHS gave for seizing the domain was to pull down the content on the site.

I'm sorry, but Hart's analysis is an interesting exercise in advocating for one side, but I can't see it standing up in court at all, because it's quite easy to point out the holes in each one of his arguments.

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The sites has a small blog component. But the sites were, based on what was in Google cache, mostly file trading sites, a forum, and a system for sharing pirated materials, remixes, and so on.

This is not true with dajaz1 at all. I also do not believe it was the case for OnSmash. dajaz1 was a blog, plain and simple. It had no forum. No system for sharing pirated material, and the music posted was sent by the copyright holders.

Why make up stuff?

Perhaps if you spent a little time to become familiar with what the sites actually had, as opposed to accepting the site owner's version verbatim, you might realize that the government had probable cause to execute the warrant.

Kind of an amusing statement when you show you did not spend that time.

Oh well.

I notice their blogs couldn't be that important, because I have seen no reports of them turning up anywhere else.

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I found some Second Circuit language directly on point holding that domain names are not per se protected speech. In other words, domain names are not presumptively protected by the First Amendment (well, at least not in CT, VT, and NY). If that's the case, I don't see how it's possibly prior restraint.

Agent Reynolds made clear that his intention in seizing the domain was not to stop the speech of the domain name, but the speech of the site.

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The response at 66 is classic con-flan-tation. I have personally never seen a website selling counterfeit golf clubs, sportsware, etc. that includes a blog/forum/community section. These sites are only able to operate and peddle their wares as long as people are led to believe they are really purchasing a real pair of Nikes, Ping Clubs, and a host of other well known consumer products.

Again, which part of the fact that "if they're selling counterfeit products, a *LAW SUIT* can be filed against them, and they have the right to defend themselves" do you not understand? Help me out.

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The First Amendment apparently protects the right to "not speak" for websites that choose to remain silent and let purchasers labor under the impression that they are purchasing genuine goods manufactured to the quality control standards imposed by the trademark holders.

No one said any such thing and you know it. Why would you lie? You used to at least add substantively to the discussion.

I'm surprised that you've switched over to making stuff up.

I said -- in the post itself -- that I have no problem with these sites being taken down AFTER A TRIAL. Seizing them prior to such a trial is prior restraint on the content of that website.

That does not mean that it's protected to sell counterfeit goods. It just means you need to have a trial before you can take down expressive content.

Google stats

When reading some of the comments I'm reminded of Google's stats a while back, that you wrote about Mike:
"In its submission, Google notes that more than half (57%) of the takedown notices it has received under the US Digital Millennium Copyright Act 1998, were sent by business targeting competitors and over one third (37%) of notices were not valid copyright claims."
Imagine the market potential. Sometimes it's only a matter of keeping somebody down for a short while, wrongfully, in order to kill a business. A strange weapon to consider good for businesses. Unless you figure only some businesses are worth protecting and allowed to "fight"?

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That's truly debatable. Terry seems always worried about the letter of the law, rather than the spirit. Everything is to fight the boogeyman of piracy when there's so many variables that he either ignores or glosses over for an authoritarian POV.

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Apparently he can, he says that those are "innovative legal tools" or something and that the efficacy of them will just grow as other "innovative" approaches comes down the road and then he turns back at the end of the post and flat out says in no uncertain terms that those affected are not out of the internet and people can reach those websites using IP's and other methods, which basically says that the "innovative legal tools" are useless.

The day

The day the internet is censored is the day the first international civil war will rise up and kill all government to make a pure and perfect civilization without censoring and corruption... save the troll or two

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"the judge had to determine if they were guilty"

Are you really saying that if the police show up at the courthouse with some evidence and a judge signs off on it, we can simply throw people in jail?

Wow! That's going to save this country lots of money. We don't even need lawyers anymore! Why have a jury? Great, we can put judges in toll booths and simply have the police drive through with their evidence.

counterfeiting and law suits.

You really should visit and talk to some companies that are living this experience. There is no way to file a legal law suit in every instance someone is stealing my D'Addario Strings trademark. We are family owned business in the USA with sales of $150 million. Sounds big, and rich and all that!!! However last year we spent $750,000 on legal battles and got nowhere. We would be bankrupt trying to protect the 1000 jobs that we provide here in the USA. We are not General Motors, IBM or NIke. The scale is not there.

If we were allowed legitimate access to the Chinese market and the Chinese were not counterfeiting our product we would be able to create 200 to 500 more jobs in the USA.

Don't paint everyone with a broad stroke of the brush. Telling the companies on the list to work harder is an insult. We work as hard as we possibly can already (its 5:30 AM where i am right now and dont stop working until 6:30 PM.

I have personally visited stores in four Chinese cities to see 7 out of 10 sets of my brand of strings are fake. The packaging is perfect, right down to the American flat and the words "Printed and Made in USA". The strings are shxt.

I wonder how that would make you feel if you started a brand name from nothing in 1974 and built it to the largest in the world only to watch people completely rip it off.

So your suggestioin to me is to work harder and sue everyone? I may as well close up or cash out and watch the 1000 jobs evaporate. Or better, maybe i should move the factory to China and destroy another 1000 US jobs?

Go on Alibaba.com and witness the hundreds of thousands of fake product listings. There is nothing on the site that is real or legitimate. At some point the government has to take some kind of police action. This is not just a civil matter, there are criminal (grand larceny) implications here.

I agree there should be due process before a site is shut down. I dont know what that process should be, but when threre is clear evidence submitted to a government agency that a site is selling fake merchandise the government should have some authority to put a URL on hold until they can defend themselves. Let the theives absorb the burden of defending themselves, don't expect the legitimate folks to foot the bill.

How is possible for the public to ask the legitimate manufacturers to bear the role of the government and police every instance of fraud with a law suit? It would be tens of millions of $$$ a year.

Learn more before developing such strong views and 'black listing' good people.

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I'm beyond stupid.

From my own experience, (no studies or citations sorry), the only thing the movie and music industry has to do to stop piracy is reduce the price. I would rather buy a movie for $5.00 than try to find it on the torrents, and $0.25 per song would make it affordable to buy music for my kids.

Re: I'm beyond stupid.

Re: Re:

Weird. Hart's analysis seems to get weaker and weaker each time he digs in deeper and deeper. Disappointing. I enjoyed his earlier works, but now it feels like he staked out a position and has to defend it at all costs, even after he knows that he made mistakes.

That piece has so many mistakes I'm debating if it's even worth doing yet another rebuttal. Probably not.

But, just a tidbit: Hart plays the same trick you tried recently, where you say that the domain name seizure does not impact the speech of the site, which ignores that the entire argument for seizing these domains was based on the content of the sites. I can't see how you can have it both ways. You can't say "we're just seizing the domain, so that doesn't impact the speech on the site" at the same time that the very reason that DHS gave for seizing the domain was to pull down the content on the site.

I'm sorry, but Hart's analysis is an interesting exercise in advocating for one side, but I can't see it standing up in court at all, because it's quite easy to point out the holes in each one of his arguments.

I don't think Hart's arguments fall apart that easily. Either the seizure in fact impacts the speech on the site, or it does not. One sentence from a non-lawyer agent doesn't change a thing. I think you're hyper-focusing on that one thing and missing the bigger picture. The court won't care what the agent said so much as they'll care about the real impact of the seizures.

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Agent Reynolds made clear that his intention in seizing the domain was not to stop the speech of the domain name, but the speech of the site.

That's prior restraint.

I think that's just wrong, and you're hanging your hat on one sentence that you have already said you think is incorrect to begin with.

The court will look at the actual effect of the seizures, not to what the agent purports to be the effect of the seizures. The court's analysis will not turn on an incorrect claim. That makes no sense.

Besides, I believe the agent was only referring to one domain name, torrent-finder.com. What about all of the other domain names that were seized? He said nothing about those.

The vice of the present procedure is that, where particular speech falls close to the line separating the lawful and the unlawful, the possibility of mistaken factfinding -- inherent in all litigation -- will create the danger that the legitimate utterance will be penalized. The man who knows that he must bring forth proof and persuade another of the lawfulness of his conduct necessarily must steer far wider of the unlawful zone than if the State must bear these burdens. This is especially to be feared when the complexity of the proofs and the generality of the standards applied, cf. Dennis v. United States, supra, provide but shifting sands on which the litigant must maintain his position. How can a claimant whose declaration is rejected possibly sustain the burden of proving the negative of these complex factual elements? In practical operation, therefore, this procedural device must necessarily produce a result which the State could not command directly. It can only result in a deterrence of speech which the Constitution makes free.

"It is apparent that a constitutional prohibition cannot be transgressed indirectly by the creation of a statutory presumption any more than it can be violated by direct enactment. The power to create presumptions is not a means of escape from constitutional restrictions."

Re: Re: I'm beyond stupid.

Yes, it is, for songs. Now what about movies? Do you ignore the success of on demand streaming for $8.00/month (Netflix), or the reduced price of rented movies, $1.00 (Redbox)? is that theft, or a price point that consumers will buy? You're out of touch.

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So, in your opinion, are domain names presumptively protected speech? My read of the Second Circuit's language is that you can't say either way. That being the case, does a judge issuing a seizure warrant for a domain name have a duty to make a determination first as to whether the domain name is presumptively protected or not?

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Mike can we get an forth button titled ... "Idiot"

No need to be so rude. That makes you look bad.

I thought the censorship was of the content on the site. To me, that argument makes sense. However, Mike's argument appears to be that seizing the domain name is censorship of speech. That's fine, but you'd have to determine that the domain name was protected speech to begin with. Mike's argument is also that since the agent said the purpose of the seizures was to take down the speech on the sites, that's prior restraint. Mike seems to be ignoring his previous point that the speech on the site is not in fact taken down. I don't think you can just ignore the reality of the seizures like that. It doesn't matter what the agent says, it matters what the reality is.

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"COICA brings 'em out. You would not believe how much manpower they've put behind this particular law."

Yeah I would and do believe it. Considering that they are now trying to violate the constitution to save their businesses. It seems they have reached the point of "no options left" and are now acting desperate and clutching at straws. Never a good sign.

But one good thing, ACTA, COICA, UK DEA, Hadopi, are the signs of the top of a bubble about to collapse.

I'm a little lost

Can someone explain to me what all the big golf companies are doing on there? I'm trying to wrap my head around how they are victims of the internet. I haven't really heard of much counterfeiting of golf clubs or gear so whats the deal?

Re: Re: counterfeiting and law suits.

So then you don't disagree with the premise of the post.

I think we all agree that there should be due process. The issue is whether or not the seizures violate due process.
The other issue is whether or not they violate the First Amendment. I'm not convinced either way on either issue.

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How is anyone ignoring anything? What's being argued is that ICE's own intent was to take the site down using the domain seizure, regardless of whether it actually did or not, that is a clear attempt that subverts due process. It does clearly matter what the agent says, for that is the reason given and rubber stamped for approval in taking the domain names.

We still arrest and charge criminals who fail to commit a crime whilst in the act of attempting it.

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How is anyone ignoring anything? What's being argued is that ICE's own intent was to take the site down using the domain seizure, regardless of whether it actually did or not, that is a clear attempt that subverts due process. It does clearly matter what the agent says, for that is the reason given and rubber stamped for approval in taking the domain names.

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The rooftops of our past have evolved into the internet domain names of our present. We find that the domain name is a type of public expression, no different in scope than a billboard or a pulpit, and Mishkoff has a First Amendment right to express his opinion about Taubman, and as long as his speech is not commercially misleading, the Lanham Act cannot be summoned to prevent it.

Once domain names are properly identified as expressive speech, that speech must be governed consistently with the First Amendment. RAV v St Paul (1992):

. . . . We have sometimes said that these categories of expression are "not within the area of constitutionally protected speech," or that the "protection of the First Amendment does not extend" to them. Such statements must be taken in context, however, and are no more literally true than is the occasionally repeated shorthand characterizing obscenity "as not being speech at all." What they mean is that these areas of speech can, consistently with the First Amendment, be regulated because of their constitutionally proscribable content (obscenity, defamation, etc.)--not that they are categories of speech entirely invisible to the Constitution, so that they may be made the vehicles for content discrimination unrelated to their distinctively proscribable content. . . .

Re: counterfeiting and law suits.

You simply fail to grasp that you are not a "stakeholder" in the vernacular of this website. You are one who looks to the USG to enact laws to secure for you a government conferred benefit, instead of adopting a better business model that eliminates the need to worry about counterfeiters.

No, the stakeholders here are the companies that use website store-fronts to foist upon an unsuspecting public fake versions of your products. After all, they are the ones bearing the brunt of these actions by federal law enforcement authorities.

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I read that as confirmation that a domain name might well be protected speech, but I don't read it as saying that a domain name is presumptively so.

Is there actually a duty on a judge issuing a warrant for the seizure of a domain name to consider whether the domain name is presumptively protected speech? If so, that's not clear. Everything, to me, sounds like that determination would be made later.

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I'm still waiting for your evidence, Anonymous. Either provide it or a complete retraction of everything you have ever said on this site. Now. Or I will continue to report everything you say. And I will not stop hounding you. Ever.

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"Lie" seems to be one of your favorite "words de jour".

I never realized that expressing an opinion with which you happen to disagree means that the opinion maker is a liar.

When I first happened upon this site I noted it based its arguments on economics. As of late it appears that it is headed in the direction of trying to become a legal blog associated with substantive, constitutional law.

Just my opinion, but it seems to me that you are far more effective basing your arguments on economic theory since it is an area in which you appear to have substantive experience.

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As always, the broad dismissal from TD. Too bad you are wrong, because you didn't read my post. I said:

" I examined two of the rap sites in google cache, and that was pretty much what was there. Lots of downloads, lots of forum, a little blog."

I didn't specifically examine dajaz1. I looked at two sites (OnSmash was one, I think the other was a "godfather" or something site, I don't remember, it's been weeks). In both cases, the sites had extensive forums, user upload areas, user "remix uploads", videos, and such.

The sources of the material? I don't know. However, user uploads are rarely sanctioned distribution networks for content.

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What the court said was just this in simple terms: A domain name can be protect by the First Amendment but it is not automatic, which means it needs someone to decide if it will be protected or not and that probably is the judge in a case by case basis. That is what it says in all its gory details that you selectively choose to ignore for some reason.

I read it the same way, but to a different conclusion. The Second Circuit is saying that maybe a domain name is protected speech, or maybe it's not. That determination would have to be made at a trial. What's clear, however, is that necessarily means the domain name is not presumptively protected speech. In turn, that means it doesn't qualify for the First Amendment seizure exception--it can be seized without it being prior restraint.

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So wait, if he wasn't trying to stop the speech of the domain name (which isn't speech, at least not in any judgement anyone can find), then why worry about having them seized?

As for the speech on the site, if the speech was in whole or in part infringing, then it is fair game. As I indicted above, the sites were linking in blog posts to files that at least on the surface would appear to be violating copyright. Remember, the warrant is based on probable cause, not absolute certainty.

There is sufficient probable cause as to lock the domains. The site owners are free to continue to run their blog (they could have gotten another domain name or just used an IP address, as the content was no seized). There is no "prior restraint" if the defendants continue to be able to exercise their free speech rights.

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Right. The agent gives many reasons for seizing the domain names, any one of which would be sufficient to justify the seizures. One reason he gives is that "furthermore, seizure of the subject domain names will prevent third parties from continuing to access the five websites listed above." I think Mike's argument is that by suggesting so, the agent is suggesting something that MIGHT be a violation of the First Amendment. And somehow, this adds up to prior restraint, despite the fact that the agent was incorrect in the claim, and despite the fact that his other claims clearly supported the seizure.

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Mea culpa. I did not realize that the defendants were foreclosed from presenting a defense here in the US.

Arguing with you is pointless when you make misleading statements like this. What lawsuits have been filed against these sites? Please let me know. The answer? None. In other words, you're lying again. So sad.

What happened to your old claims of only adding substantive factual points to the debate?

Re: I'm a little lost

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I never realized that expressing an opinion with which you happen to disagree means that the opinion maker is a liar.

You did not express an opinion. You made a factual statement. And it was wrong. And you knew it. That makes you a liar.

Just my opinion, but it seems to me that you are far more effective basing your arguments on economic theory since it is an area in which you appear to have substantive experience.

Funny, of course, that many lawyers far more knowledgeable on the subject than you seem to disagree with you. But, what can I do about that? Just this morning I got an email from a lawyer with substantial Supreme Court litigation experience, telling me how useful my posts were.

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What's the court makes perfectly clear is that under any possible scenario, a domain name is NEVER presumptively protected speech.

Whoa. You and I discussed this very ruling extensively in a previous post.

What we came to agree on was that the are ALWAYS "presumptively" protected speech - but that they may not actually be protected when examined on a case-by-case basis.

I have no idea why you seem to be doing a 180 now.

Additionally, that case was about the content of the domain names themselves. The problem is, nowhere did ICE even allege that the content of the domain names was infringing. They were attempting to shut down the content of the websites, not the content of the domain names.

So, that case is irrelevant anyway.

And viewed in a more accurate light, it's very, very obvious that what ICE did was unconstitutional. You can't seize an entire bookstore for selling "Comin' Through the Rye." You can't seize an entire record store for selling a couple of bootleg albums. You most certainly can't do this without an adversarial hearing first.

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Yeah, I'm reading it differently now. I think I was misreading it before. The argument is that the domain name is property that can be seized since it was used in the commission of criminal infringement. The whole debate about whether the domain name itself is protected speech was in the context of whether or not the seizures violated the First Amendment. The affidavit states that they were trying to seize the domain name for several reasons, one of which was that it would shut down the website. That reason turned out to be wrong, and it doesn't negate the other reasons that were alleged. ICE didn't seize the whole bookstore, so that analogy doesn't work. They seized the domain name, that's all. The website's still there.

Re: counterfeiting and law suits.

Hey, Jim. Glad you stopped by.

You make some good points, but unfortunately, there's a lot going on that you didn't address, and might not even be aware of.

First of all: Many of the seized domains did not sell counterfeit products of any kind. They were music blogs, forums, or search engines. That they are lumped in with people selling counterfeit guitar strings is completely unjust.

Second of all: Unless the entire site was selling only counterfeit products, seizing the entire domain is unquestionably illegal. Picture this: A music store (Guitar Center, say) is found to have some counterfeit guitar strings in stock. Should the government be allowed to seize every musical instrument in the entire store? Of course not. They should seize the guitar strings, and probably fine the store, but Guitar Center should still be allowed to stay in business.

It's only natural that you would want to stem the sale of counterfeit versions of your products. But operations like this are not the way to do it.

If you want to write a letter to ICE, it would be much better to say, "We applaud your attempts to seize counterfeit goods, but we urge caution so make sure your attempts are within the bounds of the law and the First Amendment."

Until you do that, I will not be purchasing any of your products. It's a shame, too, because my classical guitar needs a new set of strings.

Re: Re: Re: Re: Re: Re: Re:

It is a temptation to address the fallacies that underlie your comments, but I fear all that would accomplish is to place me once more on the receiving end of yet another "liar, liar, pants on fire" retort.

Suffice it to say that an In Rem lawsuit (as distinguished from an In Personam lawsuit) has been filed seeking a final determination by a federal court, following a full trial on the merits, that the site names should be forfeited to the ownership and control of the federal government. The court order authorizing the seizure of the domain names is but one of the early steps in the lawsuit. Because this is an In Rem action, the holders of title to the domain names are entitled to intervene in the lawsuit and press their positions before the court, both pre-trial, during the trial on the merits, and during any subsequent appeals.

Candidly, it would help immesurably if you were versed in the law as it pertains to In Rem and In Personam actions. What these terms of law mean have been stated numerous times, but apparently the meanings have as yet to sink in and to be fully appreciated and understood by many of those ranting here.

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Since you have not a clue concerning my experience and knowledge as it pertains to the relevant law, it seems to me you are doing nothing more than shooting "blanks" in your repeated attempts to discredit anything I might happen to say.

By acting like a "Sea Lawyer" you are doing a great disservice to your readers.

Re:

It's not a bad article, but it misses some fundamental points.

Mike brought one up. I'll bring up another: If it is authorized content, it cannot possibly be infringing - and materials that are not infringing are absolutely, positively protected by the First Amendment, Copyhype's claim to the contrary notwithstanding.

He also ignores that copyright law has very clear and explicit rules for dealing with injunctions against Internet infringement. (To refresh your memory, it's Title 17, Chapter 5, Sec. 512.)

If, as he claims, we can "think of seizures as cousins of preliminary injunctions," then the seizures themselves should follow the same procedures. They did not even come close to doing so. In fact, I suspect that the very reason they were called "seizures" is because if they were injunctions, they would be explicitly unlawful.

He also brings up the old canard of Arcara v. Cloud Books, which has been debunked as irrelevant so many times that it's starting to become a bad joke.

Re: Re: Re: Re: Re: Re: Re: Re:

It is a temptation to address the fallacies that underlie your comments, but I fear all that would accomplish is to place me once more on the receiving end of yet another "liar, liar, pants on fire" retort.

That is not what I did. You made a factually false statement that you knew was factually false.

Suffice it to say that an In Rem lawsuit (as distinguished from an In Personam lawsuit) has been filed seeking a final determination by a federal court

Where? Point me to the actual legal filing for the five seized domain names. Thanks.

The court order authorizing the seizure of the domain names is but one of the early steps in the lawsuit. Because this is an In Rem action, the holders of title to the domain names are entitled to intervene in the lawsuit and press their positions before the court, both pre-trial, during the trial on the merits, and during any subsequent appeals.

You seem to ignore the fact that they were not even notified of the details of the seizure or given any chance to contest it prior to the seizure. To date, many of the sites *still* have not been informed directly about the seizures.

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Since you have not a clue concerning my experience and knowledge as it pertains to the relevant law, it seems to me you are doing nothing more than shooting "blanks" in your repeated attempts to discredit anything I might happen to say.

By your tone, I know exactly who you are. You used to post here under your real name, but then stopped when we started proving you wrong repeatedly. I am familiar with your experience on this matter.

The lawyers I am speaking to about this matter, are much more deeply involved in these issues and much more knowledgeable on the subject. I trust them, rather than someone who hides behind an anonymous cloak (but still posts attacks on me on other sites) and then lies about things when called on it.

So .. infancy man

It would seem to me that this is a lively topic and one all over the place.

It would also seem to me that the brick-n-border vs bit-n-order businesses have yet to build a connection their respective products that viably bridge the gap. "Let us open a web site and sell our stuff" is about as far as it seems to get.

We've established certificates and authentication for the money transaction on the Internet whereas we can pass a buck across the counter on Land.. for the same wares. Why are we not embracing authenticated product? Have smart phone can authenticate type of stuff. Barcodes, SN's, prodID's .. all kinds.. lists, comprehensive mind you, of authorised dealers etc. Rapid verification online or off.

I understand I've over simplified however a good part of the last couple of decades has been a "post and prosper" mindset without a whole lot of ... "product integration with point of sale".

Log it - audit it - call out your enemies in near-real time - have a fake? tell us where/how we'll give you a discount on the real goods.

Grab friggin hold bubbas. You can't placate a pi-rate but you sure can appease the masses. Brains not brawn right?

And thanks to D'Addario for the post, a bit of real amidst the rank.

The old school business models simply do not translate.

Soft and hard products need to properly evaluate Internet and how said Internet does business. Flog it? Log it.

Re: Re: Re: Re: Re:

"To explain a bit more... The court is saying that a domain name is neither presumptively protected speech, nor is it NOT presumptively speech. This may sound like a contradiction, but it's not. The other possibility is that it's not protected speech at all. What's the court makes perfectly clear is that under any possible scenario, a domain name is NEVER presumptively protected speech. The Supreme Court's First Amendment exception to Fourth Amendment seizures only applies to presumptively protected speech. Domain names don't qualify for the exception since they aren't presumptively protected speech. Simple really."

How about the content? If that is presumptively protected speech then isn't the domain name's status a moot point?

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"The lawyers I am speaking to about this matter, are much more deeply involved in these issues and much more knowledgeable on the subject."

More knowledgeable and involved than you? That is a point on which I agree.

More than me? Depends on who they are, but then I have no desire to engage in a battle of CVs.

And please stop with the "liar" retort. If I have misstated a fact I am more than pleased to make a correction if the specific misstatement is described. I can assure you, however, that I am not in the habit, and have not the slightest inclination or predisposition, to deliberately state something as being a fact that I know to be otherwise.

I do not resort to calling others "liars". It is a term that reflects negatively upon one's character and integrity. I take umbrage whenever anyone levels such a claim my way.

Re: counterfeiting and law suits.

"If we were allowed legitimate access to the Chinese market and the Chinese were not counterfeiting our product we would be able to create 200 to 500 more jobs in the USA."

Then again, they may just be forced to sell quality merchandise or stop lying to their customers. Either way it would be a good thing.

'I have personally visited stores in four Chinese cities to see 7 out of 10 sets of my brand of strings are fake. The packaging is perfect, right down to the American flat and the words "Printed and Made in USA". The strings are shxt.'

As someone with a legitimate and reasonable concern for actual counterfeiting, you shouldn't be supporting actions that seek to abuse that concern for pure greed. Whether you're just concerned that you're not getting their money, or that the consumers are being misled, the fact is that your example is why we should have laws against counterfeiting.

"Don't paint everyone with a broad stroke of the brush. Telling the companies on the list to work harder is an insult."

I'm not sure who said they should work harder, but I agree that there may be nothing fundamentally wrong with those companies except that they are supporting this bad policy.

"I wonder how that would make you feel if you started a brand name from nothing in 1974 and built it to the largest in the world only to watch people completely rip it off."

Quite honestly, in your position I would only be aggrieved by the fact that my customers may be ripped off. I don't believe that a brand name loses any value by people copying it, only by people confusing it. The two may be intrinsically linked, but I feel it is an important distinction.

"So your suggestioin to me is to work harder and sue everyone?"

Again, I am unsure where you are coming from here. I would like to be able to support laws that deal with real counterfeiting, but as long as they are hijacked by less noble interests or flout due process then I cannot.

"I agree there should be due process before a site is shut down. I dont know what that process should be, but when threre is clear evidence submitted to a government agency that a site is selling fake merchandise the government should have some authority to put a URL on hold until they can defend themselves."

As far as I can tell, that process is already in place but the issue is that it isn't being followed. Due process is pretty pointless if the site is shut down before it happens.

"How is possible for the public to ask the legitimate manufacturers to bear the role of the government and police every instance of fraud with a law suit? It would be tens of millions of $$$ a year."

Re: Re: Re:

"One sentence from a non-lawyer agent doesn't change a thing. I think you're hyper-focusing on that one thing and missing the bigger picture. "

You're the one who's focusing on that one quote Mike used to back up the argument, rather than looking at the argument itself. Either they seized the domain name for no apparent reason, or they seized it to stop access to the site, unless you can think of a plausible alternative explanation for them seizing the domain names.

It does make me wonder whether companies aren't overstating the effect of legitimate concerns when they don't take effective measures but do support overreaching legislation. Perhaps the guy making guitar strings could spend his legal budget instead on promoting authorised dealers, for example.

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You're the one who's focusing on that one quote Mike used to back up the argument, rather than looking at the argument itself. Either they seized the domain name for no apparent reason, or they seized it to stop access to the site, unless you can think of a plausible alternative explanation for them seizing the domain names.

According to the affidavit, the domain name was seized because it was property used in the commission of a crime. The confusion seems to center around whether or not it's really more than just a piece of property, e.g., maybe it is protected speech.

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"Yeah, I'm reading it differently now. I think I was misreading it before. The argument is that the domain name is property that can be seized since it was used in the commission of criminal infringement. The whole debate about whether the domain name itself is protected speech was in the context of whether or not the seizures violated the First Amendment. The affidavit states that they were trying to seize the domain name for several reasons, one of which was that it would shut down the website. That reason turned out to be wrong, and it doesn't negate the other reasons that were alleged. ICE didn't seize the whole bookstore, so that analogy doesn't work. They seized the domain name, that's all. The website's still there."

So, the analogy would be that they confiscated the book store's signs instead? How would that be more justifiable?

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"The confusion seems to center around whether or not it's really more than just a piece of property, e.g., maybe it is protected speech."

If they're confiscating it for no reason other than it's related to a crime (for which there has been no case heard), then why is that more important than the fact that they are forcing a website with protected speech on to get a new name? The whole point of prior restraint is that limiting free speech doesn't have to mean direct censorship. If you're merely taking them out of the Google results until they register a new name then that would still seem to be prior restraint. Just because it's not entirely effective does not mean it isn't effectively censorship.

Re: Re:

It's not a bad article, but it misses some fundamental points.
Mike brought one up. I'll bring up another: If it is authorized content, it cannot possibly be infringing - and materials that are not infringing are absolutely, positively protected by the First Amendment, Copyhype's claim to the contrary notwithstanding.

Authorized content is protected by the First Amendment, but through copyright law's internal mechanisms (idea/expression dichotomy and the fair use doctrine) rather than through separate First Amendment scrutiny. So, unlike with cases involving obscenity, a seizure before a hearing is not a prior restraint.

He also ignores that copyright law has very clear and explicit rules for dealing with injunctions against Internet infringement. (To refresh your memory, it's Title 17, Chapter 5, Sec. 512.)

Those are conditional prohibitions against injunctions for certain specifically defined online service providers. 512 certainly isn't a blanket prohibition on injunctions for all "internet infringement."

Whether or not the sites seized qualify for these safe harbors is certainly an issue, one that can be raised as a defense. But this defense is irrelevant to the question of whether a preseizure hearing is required by the Constitution.

If, as he claims, we can "think of seizures as cousins of preliminary injunctions," then the seizures themselves should follow the same procedures. They did not even come close to doing so. In fact, I suspect that the very reason they were called "seizures" is because if they were injunctions, they would be explicitly unlawful.

They would not be. Preliminary injunctions are routinely awarded in copyright infringement cases.

He also brings up the old canard of Arcara v. Cloud Books, which has been debunked as irrelevant so many times that it's starting to become a bad joke.

No offense to Mike or the TD community, but I don't find the "debunking" of Arcara in any way persuasive.

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"The claim here is that the domain name is property used in the commission of a crime, and as such, it can be seized under U.S. Code."

You mean, except for the domain names that weren't used in commission of a crime? Then even so, how does that justify stomping over their free speech rights? Does this mean someone should be able to accuse Techdirt of infringement and immediately get the domain name seized? Even if there is infringement, how is that a proportionate response?

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Authorized content is protected by the First Amendment, but through copyright law's internal mechanisms (idea/expression dichotomy and the fair use doctrine) rather than through separate First Amendment scrutiny. So, unlike with cases involving obscenity, a seizure before a hearing is not a prior restraint.

Um, if content is authorized, copyright infringement cannot occur. It does not need a fair use defense or the idea/expression dichotomy, it is not and never will be infringement.

Say I want to do a Beatles cover. I pay the statutory rates to the Harry Fox company, and release it. Can I be sued for infringement? No. It is authorized. It is, by definition, not infringing. If the government seized a domain where I was selling my CD, would it be prior restraint? Yes. Since it's not infringing, my cover song is protected expression.

That is exactly what happened in one case. The songs listed in the affadavit were sent in by label representatives, with the express purpose of being posted on the music blog. They are not infringing. No defense (fair use or otherwise) is even necessary.

Those are conditional prohibitions against injunctions for certain specifically defined online service providers. 512 certainly isn't a blanket prohibition on injunctions for all "internet infringement."

And the seizures should have followed those conditional prohibitions. They did not. The cases we are talking about (blogs, forums, search engines) absolutely fall under the category of those "specifically defined online service providers." Blanket injunctions against those sites would have been denied.

Not prior to an adversarial hearing, they're not. A full trial may not be required, but an adversarial hearing is. Even for tort cases, where the burden of proof is significantly lower.

this defense is irrelevant to the question of whether a preseizure hearing is required by the Constitution.

A preseizure hearing is required by the Constitution in all cases where the seizure has the effect of adversely effecting potentially protected speech. A warrant is insufficient. See Fort Wayne Books v. Indiana.

No offense to Mike or the TD community, but I don't find the "debunking" of Arcara in any way persuasive.

I don't see why not. The case itself makes it perfectly clear: it only applies in cases that "manifest absolutely no element of protected expression." Note that it doesn't matter if the activity is not protected in the final analysis; it must only have an "element" of protected expression.

Copyright infringement is an exception to the First Amendment; in absence of infringement, the expression is protected. This absolutely puts it in the same category as obscenity, libel, defamation, etc. Even child pornography has an "element" of protected expression, and you can't get much more illegal than that.

Furthermore, even laws against acts completely unrelated to free expression can be prior restraint, if they "impose a disproportionate burden upon those engaged in protected First Amendment activities." Blogs, search engines, and forums are all "protected First Amendment activities," so according to Arcara itself, these seizures are unconstitutional. Indeed, the seizures could not be carried out against anyone other than those engaged in potentially protected expression.

Your interpretation would remove First Amendment concerns from every possible legal investigation. That's clearly not what the court had in mind.

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You see this is where clarification from the judge involved would be helpful.

But if it is to get meaning from the wording, no where in there "trial" is the instance to be concluded, it suggests that the judge will take into consideration if it is a case of presumptively protected speech or not, meaning he has to make the call at the moment of the first request and not at trial because that would defeat the purpose of having presumption and not being protected.

I haven't paid a penny to the entertainment industry (music, movies, games) in well over 5 years. I'll download movies, movies and games as they are released. Why would I fund the lawyers who will come after me for sampling some of their goods. I have no intention in the future to spend money on movies, music or games, until such time that the industry starts treating their customers as actual customers.

In the past I actually bought and pirated in equal amounts. These days there is really no point funding a bunch of scummy lawyers. Give me what I want and when I want it and I will start paying for content.

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Um, if content is authorized, copyright infringement cannot occur. It does not need a fair use defense or the idea/expression dichotomy, it is not and never will be infringement.
Say I want to do a Beatles cover. I pay the statutory rates to the Harry Fox company, and release it. Can I be sued for infringement? No. It is authorized. It is, by definition, not infringing. If the government seized a domain where I was selling my CD, would it be prior restraint? Yes. Since it's not infringing, my cover song is protected expression.
That is exactly what happened in one case. The songs listed in the affadavit were sent in by label representatives, with the express purpose of being posted on the music blog. They are not infringing. No defense (fair use or otherwise) is even necessary.

Yes, the existence of a valid license means no copyright infringement occurred. But that doesn't subject the seizure to heightened First Amendment scrutiny, requiring a preseizure hearing. Agree or disagree, that's an accurate statement of the law.

And the seizures should have followed those conditional prohibitions. They did not. The cases we are talking about (blogs, forums, search engines) absolutely fall under the category of those "specifically defined online service providers." Blanket injunctions against those sites would have been denied.

Again, safe harbors are a defense. Defenses have to be asserted by the defendant, not investigated by the law enforcement agency making the seizure. But even if it turns out a web site qualifies for a safe harbor, that doesn't affect the seizure, and it doesn't have any bearing on whether the First Amendment requires a preseizure hearing.

Not prior to an adversarial hearing, they're not. A full trial may not be required, but an adversarial hearing is. Even for tort cases, where the burden of proof is significantly lower.

Preliminary injunctions are routinely awarded in copyright infringement cases. See Napster and Aimster, for example.

A preseizure hearing is required by the Constitution in all cases where the seizure has the effect of adversely effecting potentially protected speech. A warrant is insufficient. See Fort Wayne Books v. Indiana.

Nope. Preseizure hearing is only required for large-scale seizures -- where it has the effect of taking the speech out of circulation -- of presumptively protected speech because of their content. It's not required where the impact on protected speech is incidental to the seizure.

I don't see why not. The case itself makes it perfectly clear: it only applies in cases that "manifest absolutely no element of protected expression." Note that it doesn't matter if the activity is not protected in the final analysis; it must only have an "element" of protected expression.

It applies where the conduct at which the law or regulation is targeting has no element of protected expression. Facilitating the infringement of entire songs or movies has no element of protected expression.

Even if it does, that doesn't mean the seizure is prohibited without a preseizure hearing, it just means the constitutionality of it is analyzed under the O'Brien test. I think even under that test, these seizures would be constitutional.

Furthermore, even laws against acts completely unrelated to free expression can be prior restraint, if they "impose a disproportionate burden upon those engaged in protected First Amendment activities." Blogs, search engines, and forums are all "protected First Amendment activities," so according to Arcara itself, these seizures are unconstitutional. Indeed, the seizures could not be carried out against anyone other than those engaged in potentially protected expression.

That doesn't make sense. It means every internet regulation is entitled to First Amendment scrutiny because every internet regulation disproportionately burdens web sites. That's like saying every law violates equal protection because humans are a class of people and every law disproportionately affects that class of people.

Lawsuits?

And, of course, none of this is to say that violating copyright or trademark laws should be allowed. But we have a system to deal with such things: you file a lawsuit, you have an adversarial hearing in a courtroom (i.e., due process) and you let both sides present their case. COICA and these domain seizures look to avoid all of that. And that's a big, big problem.

Anyone believing suing copyright and trademark violators is living in the 1950s. The Internet is a global marketplace but the legal system is completely local. You can file suit against a company operating in France in a courtroom in California. They might even grant you a default judgement when the other party doesn't show up, but it doesn't do any good. More than likely it would be thrown out anyway because the California court has no jurisdiction over a French company.

And that is assuming you can find the owner of a web site. There is an entire industry in anonyminizing web sites so the owner cannot be found.

With this in mind, the idea of lawsuits being some kind of "due process" is a joke. You cannot sue someone on the other side of the planet. You might be able to sue them in their own country, but only a great expense, possibly more than you would ever gain in a judgement - even if it allows your company to survive.

The new business model is to ignore such niceties and plan on changing businesses when the legal climate finally turns against you. Cheat everyone with the clear knowledge they cannot do anything about it because of international restrictions on lawsuits and law enforcement.

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How about the content? If that is presumptively protected speech then isn't the domain name's status a moot point?

I think the courts will look at the content on the server and the domain name as being two separate things, which is what they actually are. You can seize one and not the other--they are separate things.

If the domain name is property used to commit a crime, it can be seized under 18 U.S.C. 2323. Once there is probable cause that the site is being used to infringe criminally, the domain name can be seized since it's property used to commit that crime. The content on the site is looked at to determine if there's a crime. The domain name is just property that's used to commit the crime.

Re: counterfeiting and law suits.

And with a single signature you managed to kill the good-will that many people had towards your product.

I wonder what you could have done with that three-quarters of a million dollars if you had not spent it on lawyers.

More importantly, why are you trying to encourage legal changes in America when you are having your biggest (from what you seem to be saying) problems in China (where they will happily hang you with your own infringement claims, laughing as you challenge a chinese manufacturer.

What about other, Positive branding models?

Build relationships with your dealers. Keep a database on your site of the Best Places To Get Strung Out With D'Addario. Ok, thats a terrible line. Pay less to a lawfirm and pay someone to come up with a better line, then Use it.

"if you're not buying at Xinhao Music Superstore, you're not playing on D'Addario"

To stretch a metaphor, its like you were sponsoring a Klansman for political office. It does not matter that you really like his position on property tax issues, you are now stained with everything attached to this massive list of companies known far and wide as bullies. Why? Just so they could claim to be representing "small business"?

This lineup of child-laboring, sweatshop-running litigious monsters.. and you.

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How about: seizing the building that the bookstore is in, but not the books themselves?

After all, a building isn't protected by the First Amendment. So this wouldn't be prior restraint... right?

Let's make the files on the server the books, the server computer is the bookstore, and the domain name is the sign on the front door. All the seizure does is take down the sign on the front door. The books and the bookstore are exactly where they were before the seizure.

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You see this is where clarification from the judge involved would be helpful.

Agreed. Thinking about it makes my head hurt. It's poorly phrased.

But if it is to get meaning from the wording, no where in there "trial" is the instance to be concluded, it suggests that the judge will take into consideration if it is a case of presumptively protected speech or not, meaning he has to make the call at the moment of the first request and not at trial because that would defeat the purpose of having presumption and not being protected.

But if a determination has to be made on the merits, doesn't that make it not a presumption?

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If they're confiscating it for no reason other than it's related to a crime (for which there has been no case heard), then why is that more important than the fact that they are forcing a website with protected speech on to get a new name? The whole point of prior restraint is that limiting free speech doesn't have to mean direct censorship. If you're merely taking them out of the Google results until they register a new name then that would still seem to be prior restraint. Just because it's not entirely effective does not mean it isn't effectively censorship.

I think there's two different speeches here, the content of the website, and the domain name itself. The domain name is being seized because of alleged crimes being committed on the website. You can seize the domain name because its connection to the content on the website is only incidental. The domain name itself is also speech, but it too can be seized because it's not presumptively protected speech. It may well be protected speech, but that is yet to be determined.

I'm just not seeing the prior restraint. Where's the First Amendment violation?

Prior restraint

This is a fallacious argument, although I wouldn't be surprised if the current court agreed with you anyway. It's wrong for the same reason that it would have been wrong in the day of the printing press to argue that as long as the journalist's typewritten copy wasn't confiscated, it would be permissible to seize the newspaper's printing presses so as to prevent publication of the article.

Seizing a the domain name used to publish an article is exactly analogous to seizing the printing press that would be used to print the article. To claim that this is not prior restraint is sophistry.

If it is authorized content, it cannot possibly be infringing - and materials that are not infringing are absolutely, positively protected by the First Amendment

Has it been shown that the labels authorized the website owners to distribute the songs on the Internet, as opposed to merely sending a track for a blog owner to review? My understanding was that a copy was sent to certain bloggers so that they might post a positive review of a new album/song, not so they would distribute it online.

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The problem is that for every company on this list who has lost money to trademark or copyright infringement, there are two who have tried to use IP laws to cover up abusive business practices. And with this law's shoot first-ask questions later position on reassigning domain names to aggrieved trademark owners... anyone who wants to speak ill of Nike's foreign labor relations, the impact of the NBC / Comcast merger, offer a discount on used golf clubs or last year's purses, or give a negative review of an Activision game had better learn to speak in riddles. By using brand names to simply talk about name brand products, a critic will have to bear the moral and financial burden of proving he wasn't peddling Xerox-Herbal-Viagra when criticizing Xerox's opinion of aftermarket toner. Say the same about any firm you love to hate, even if they're not on this list.

It's bad policy to give companies the power to shut critics up without having to prove that each critic (1) is misusing trademarks, (2) is costing the trademark owner business, and (3) that shutting the critic up is the only way to fix the problem. That is what a mere mortal would have to prove in court to get an injunction.

Needing only unproven allegations to get a domain taken down for the duration of litigation is a due process concern. Only having to prove that trademarks are being used, not misused, is a free speech concern. But you're right in this: those concerns may not add up to make this law unconstitutional. Bearing in mind, then, that a court challenge to the law may not succeed, it's that much more important to stop this law before it's passed.

Protecting U.S. jobs...

Darryl, unfortunately for example Nike does not actually manufacture their products in the United States. So not only are we being asked to give up due process and our first amendment rights to protect Nike's profits, we're also being asked to give up U.S. manufacturing jobs.

This isn't about downloading music. It's got absolutely nothing to do with downloading music. It's got to do with control.

For instance, did you follow the recent case where the Supreme Court held that the first sale doctrine does not apply to products purchased in foreign countries, even countries that are signatories to the Berne convention? What does this mean? It means that we, here in the U.S., pay higher prices for products licensed by U.S. companies than people do abroad.

Re: Rebuttal Letter

Nicely done, I'm surprised there are no replies yet. I think this is a great approach, to respond to the "United Front" with another, contrary one.
But this needs to be carried all the way through: get signatories and send the letter to the same people who got the first one. Facebook is probably a good place for it; set up a "page", collect signatures, and then ship it off on the specified date/time. If you'd like to collaborate on this, stellarwaif, my email is toby dot fernsler at gmail.

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you should reread the parable about the emperor and his new clothing. Your position is fallacious. demanding the government not to support false economies is not thievery. Perhaps these companies need to find better ways to make money instead of demanding handouts from society.

Spare us the rhetoric about stealing, thanks. As anyone from the 'greatest generation' would say to their kids, these companies should "go get real jobs."

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Yes, the existence of a valid license means no copyright infringement occurred. But that doesn't subject the seizure to heightened First Amendment scrutiny, requiring a preseizure hearing.

How could it not? Silencing speech before it has been deemed unprotected is the very definition of prior restraint. It is exactly for this reason that heightened First Amendment scrutiny exists in the first place.

Again, safe harbors are a defense. Defenses have to be asserted by the defendant, not investigated by the law enforcement agency making the seizure.

In any case, none of the defendants have been provided with any opportunity to mount such a defense. They have not been charged with any crime, or indeed even contacted by ICE or any member of the court.

Preliminary injunctions are routinely awarded in copyright infringement cases. See Napster and Aimster, for example.

In neither case were they awarded without allowing the defense a chance to weigh in on the matter. That's how Napster got their injunction revised in 2000. In all these cases, an adversarial hearing was required beforehand.

Preseizure hearing is only required for large-scale seizures -- where it has the effect of taking the speech out of circulation -- of presumptively protected speech because of their content. It's not required where the impact on protected speech is incidental to the seizure.

The entire point of these seizures was to take speech out of circulation. The impact isn't "incidental," it's the whole enchelada.

Facilitating the infringement of entire songs or movies has no element of protected expression.

You are 100% wrong. I'm sure you remember this quote from Eldred v. Ashcroft:

We recognize that the D. C. Circuit spoke too broadly when it declared copyrights "categorically immune from challenges under the First Amendment."

Even speech that is found to be unprotected has an "element" of protected expression. Take obscenity for example. Roth v. United States held that "obscenity is not within the area of constitutionally protected speech or press." Yet any attempt to seize obscene materials must be predicated by an adversarial hearing, or else it's prior restraint.

It's the same situation with copyright infringement.

Even if it does, that doesn't mean the seizure is prohibited without a preseizure hearing, it just means the constitutionality of it is analyzed under the O'Brien test.

All ruled, absolutely and without exception, that seizures or injunctions prior to an adversarial hearing are unconstitutional when a First Amendment defense can be mounted. Even if that defense is unsuccessful on its merits.

It means every internet regulation is entitled to First Amendment scrutiny because every internet regulation disproportionately burdens web sites.

That is exactly what it means. And, in fact, every internet regulation has been subject to First Amendment scrutiny. That scrutiny may result in a finding that the regulation is constitutional, but the First Amendment must at least be considered.

Re: counterfeiting and law suits.

Hi Jim, I think it's great that someone representing companies from that list took the time to respond to this article, and is willing to listen to his critics. What everyone here sees in COICA and the domain seizures is that it is the ongoing attempt to 'black list' us and the sites we choose to visit, rather than the sites and crimes it claims to target. Nobody likes being blacklisted, not me and not you.

D'Addario makes some great strings, and when I've bought them I did so from merchants I trust. I think this is somewhat common behavior, no one wants to buy inferior counterfeit products. Your customers are on your side; they don't want to buy fake merchandise either, they want to buy your merchandise. The gist of the letter to me though is that I am being lumped in with the counterfeiters. It treats me with disrespect, and so undermines my respect for its signatories.

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Yes, the existence of a valid license means no copyright infringement occurred. But that doesn't subject the seizure to heightened First Amendment scrutiny, requiring a preseizure hearing. Agree or disagree, that's an accurate statement of the law.

I don't believe this is actually a correct statement of the law, Terry. We've now cited numerous cases that all say seizing speech requires greater scrutiny. I find it odd that you keep denying this.

Preliminary injunctions are routinely awarded in copyright infringement cases. See Napster and Aimster, for example.

That's not what Karl said. Karl noted that even when there were preliminary injunctions -- such as in Napster and Aimster, there was still an adversarial hearing in which those companies were able to present their reasons against the injunction. They may have lost, but a hearing was held.

That is not the case here, which is where the violation comes in. As noted, the sites in question still haven't even been informed that their domains were seized or why.

You don't find that to be a violation of the law?

Nope. Preseizure hearing is only required for large-scale seizures -- where it has the effect of taking the speech out of circulation -- of presumptively protected speech because of their content. It's not required where the impact on protected speech is incidental to the seizure.

Ah. So, please point me to where I can find OnSmash's content?

Oh, you can't?

Separately, as already noted, DHS explicitly claimed that its purpose was to block the speech on these sites. I'm not sure why you ignore that. You're playing a game that appears intellectually dishonest. You defend the seizures by pointing to the content on the site, but you ignore the content on the site when people point out that the First Amendment was violated.

You're defending the indefensible.

It applies where the conduct at which the law or regulation is targeting has no element of protected expression. Facilitating the infringement of entire songs or movies has no element of protected expression.

This is wrong. I'm not sure why you would state something that is flat out wrong, but you did. Karl has already pointed out why so I'm not going to repeat it.

That doesn't make sense. It means every internet regulation is entitled to First Amendment scrutiny because every internet regulation disproportionately burdens web sites.

Why doesn't that make sense? First Amendment case law is pretty clear that if you're putting a burden on speech via regulation, then, yes, it is entitled to First Amendment scrutiny. It's perfectly sensible that internet regulations are entitled to First Amendment scrutiny. I'm sort of at a loss as to why you would claim otherwise.

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Has it been shown that the labels authorized the website owners to distribute the songs on the Internet, as opposed to merely sending a track for a blog owner to review? My understanding was that a copy was sent to certain bloggers so that they might post a positive review of a new album/song, not so they would distribute it online.

Your understanding is incorrect. I saw the emails in question. Not only that, but they were sent to sites whose widespread known MO was to post links to the downloads themselves. The promoters knew exactly what they were doing, and played up the fact that these songs were available to download in a promotional manner.

Really?

Actually the best way to fight back is to become the criminals they already suspect everyone of being. Pirate everything you want. By supporting abuse they condone it, so in all likelihood it will return to them tenfold. For all of the physical merchandise, that's a joke plane and simple. Odds are knock off nike's and so forth are being made in a building one block over from the real versions in China or some other country that these corporations are exploiting. They're a joke. And so are you.

Pull the other one.

Re: The day

The day the internet is censored is the day the first international civil war will rise up and kill all government to make a pure and perfect civilization without censoring and corruption... save the troll or two

HAHAH,, first international CIVIL war

BTW: thay day happened many years ago. even before the internet was invented.

Cersorship on the internet is as old as the internet itself, deal with it.

Re: WHO cares

Again, for you its the USA and there is nothing else, sorry, 'the banking system was not screwed up', the US's banking system, in particular the sub-prime mortgage markets, and the MASSIVE DEBT you buit up fighting a losing war caused YOUR FINANCIAL SYSTEMS to fail.

Most other countries, particularly ones who have learnt not to rely on the US, did not suffer anything like what is STILL occuring in the US.

The US is a basket case, and should be in intensive care, and you want to reduce peoples spending from US companies !!.

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Yep, I agree with that theory. However I have been to the Nike store and bought shoes that were crap and fell apart really quickly. I guess then they should shut themselves down also?
This is just what the article claims it to be, a law to provide a way around due process because they are to lazy or they don't want to spend the money/time to follow due process.
And most of these products I don't use, mainly because of their actions before. Now I will also add a lot of other companies to my list.

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Again, you keep making this argument, which is totally undermined by the fact that DHS's own filing on the matter equated the two.

You really are hanging your whole argument on one sentence in the affidavit, a sentence that you yourself pointed out as being incorrect.

Do you really think a judge is going to say, "Well, you didn't actually take down the content on those sites, but you said that you were going to, so we'll call that prior restraint, even though nothing was in fact restrained." Good luck with that. And what about all of the other sites that were seized? The affidavit only covers five sites.

Jim D'Addario

I agreed with everything Jim D'Addario said up until he essentially said that all accused parties are guilty until proven innocent. Kind of flies right in the face of presumption of innocence, doesn't it? This is exactly why companies on this list should not be supported, they don't give a damn about anyone's rights. If you are going to use the legal system to accuse another party then you damn sure better provide sufficient evidence. It is not the accused party's obligation to prove innocence, that is the accuser's job.

Re: counterfeiting and law suits.

Have you ever heard of something called presumption of innocence? Your idea of making the accused prove their innocence is horrible and spits on the principles on which this country was founded.

How dare you propose something so sinister which would obviously be ripe with abuse. You do this while at the same time hiding like a coward behind 1000 American jobs. Please explain how destroying the concept of presumption of innocence is less detrimental to America than losing 1000 American jobs.

Thanks for the boycott list :)

Sent this to everyone I know. Thanks for doing the legwork so We know exactly which companies to boycott. One would imagine though that given recent events, the legislators would now have the necessary amount of instilled fear to no longer infringe on our individual, inherent rights. I guess We will see if they have enough instilled fear yet :)

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"I'm just not seeing the prior restraint. Where's the First Amendment violation?"

They're a) restricting access not just to existing protected speech, but any further speech via that site (prior restraint); b) restricting access to protected speech without any defensible reason (at least the DMCA is an accusation against the speech itself). I'm not arguing that the domain name itself is protected speech, because I honestly don't see a need to look at that argument when there are more obvious reasons why what they did was wrong.

So I guess we can agree to disagree. You believe that blocking a domain name has no impact on the free speech rights of a website. I would point to the various examples of just such a mechanism being used (or proposed) as a form of censorship, but I can't imagine that you're not already aware of them.

Say no to intellectual monopoly

"1) Don't watch any major league sports. Even the "good" ones have Nike equipment and sponsored players. So stop it now!"

I don't. Waste of time.

"2) Don't watch or support college anything, because they have the same connections."

I don't. Waste of time.

"3) Don't listen to any music. It is very possible that it was made with a D'Addario string or was somehow connected by a monster cable. Don't take a chance!"

I don't listen to or download music produced by RIAA companies. I'd rather write my own music.

"4) Don't watch TV, or watch any movies. There are plenty of deals here where people from the nasty villain companies may have a finger in everything you enjoy, distribution rights on it, or may even be financing it through subsidiary companies or proxies. Don't take a chance!"

I don't. TV is a supreme waste of time. It isn't worth separating the wheat from the chaff. I trashed my television long ago as a matter of cognitive defense. I rarely go to movies or bother with so-called "premium content."

The premium content industry has managed to cause great social evil out of proportion to its economic significance.
A notable achievement, facilitated by a non-manufacturing, consumer economy.

Apologists for the putative right of the intellectual monopolist to inflict asymmetric zero-sum games on consumers can pay monopoly prices for rubbish until they are blue in the face. Those of us in the free software movement are working to create alternatives to a live circumscribed and impoverished by the moribund non-imagination of corporate intellectual monopolist non-innovators.

Playing their asymmetric zero-sum games is a waste of your time, energy, money and life.

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You haven't been paying attention. Seizure of domain names without due process what he's talking about, especially when most of those have other non-infringing content.

Besides, how does it benefit society to condemn them as criminals without first proving it?

What's happened is that domain names were seized closing down the whole of the site when in some cases those sites were legitimate and the content in question was given to the site as promotion for them to promote.

This is what happens when you let business interest come before due process.

Re: Re: Re: Re: Re: counterfeiting and law suits.

Things get seized and people get arrested all the time, and before there's a trial on the merits. It doesn't violate due process necessarily.

They have to be charged with a crime, and ownership of seized property is not automatically transferred to the state. The owners of the seized domain names have not been charged or even contacted by ICE, and have no opportunity to respond to the seizure. They have been afforded no opportunity to participate in the process at all, due or otherwise.

Re: Re: Re: Re: Re: Re: counterfeiting and law suits.

They have to be charged with a crime, and ownership of seized property is not automatically transferred to the state. The owners of the seized domain names have not been charged or even contacted by ICE, and have no opportunity to respond to the seizure. They have been afforded no opportunity to participate in the process at all, due or otherwise.

False, they don't have to charged with a crime. True, ownership is not automatically transferred to the state, but possession is transferred for the time being. That's how seizure of any property works. False, some lawsuits have been filed and the owners of the domain names are being given a chance to be heard in court. Eventually, every single domain name owner will get their day in court.

It sounds to me like you don't really know what's going on, and you're just assuming the worst. Don't let the headlines fool you.

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Your understanding is incorrect. I saw the emails in question. Not only that, but they were sent to sites whose widespread known MO was to post links to the downloads themselves. The promoters knew exactly what they were doing, and played up the fact that these songs were available to download in a promotional manner.

I don't know that a label employee sending a file to a blog owner "known" (by whom?) to distribute files is enough to constitute a content distribution license on behalf of the record label. The blogs would have to prove(in court) that they had an implied license with someone who was an authorized agent of the label, and thereby had the power to grant digital distribution licenses on behalf of the organization. Proving as much would be exceedingly difficult.

As has been discussed before, however, the agent used the few examples in order to meet the requisite standard of proof for the seizure only. A reviewing court need not confine itself to the few examples listed in the affidavit.

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Do you really think a judge is going to say, "Well, you didn't actually take down the content on those sites, but you said that you were going to, so we'll call that prior restraint, even though nothing was in fact restrained." Good luck with that. And what about all of the other sites that were seized? The affidavit only covers five sites.

No, I think that seizing domain names is clearly prior restraint on the sites being seized... I'll quote the ruling in Pappert:

[this law represents] unconstitutional prior restraint because it prevents future content from being displayed at a URL based on the fact that the URL contained illegal content in the past

Money is evil. It's hilarious reading about how caught up everyone gets in it. They spend their whole lives worrying about their materials.. perhaps if we weren't fighting about who gets to say what and who gets the biggest piece of pie we could actually accomplish something. Look at the world right now. Greed runs rampant in the streets and we're all hating and killing each other over it. For what purpose?

Re: counterfeiting and law suits.

Hi Jim. I've been a loyal customer of yours for many many years. My electrics take your XL Jazz/Rock gauge strings, and my acoustic takes the phosphor bronze light gauge (it's a cedar top, so I've gotta keep the tension down). I typically go through two to three boxes of strings a year when I'm not playing in a band, and probably close to ten when I do (currently I'm in two bands). I started buying your strings back in the early nineties, because you had a nice heavy gauge going on (.011 E, unwound G) and they were solid.

Given the potential for abuse in this legislation, I can't possibly understand how you can think this is a good idea. All the company has to do is to contact the registrar and complain, and the site gets pulled? C'mon... that's just insane. And if you think that it won't be abused... well, I've got some great land in Florida for you.

You know, I've worked my way through lots of gear over the years, and certainly your strings is far and away the longest ongoing relationship I've had on gear, excepting my strat... and I've actually spent far more money on your strings than I have on the actual guitar in the 25 years I've owned it.

I won't be buying more. You need to seriously rethink your support for this legislation.

Re: counterfeiting and law suits.

Jim, thanks for letting us know your stance. You have an excellent company and one that provides a great line of products in the music place. I definitely appreciate your concern about others selling inferior products and claiming they are actual D'Addario strings. That could be very frustrating to the consumer that finds that the product is not up to the highest quality that I know you support. I know *I* have used D'Addario strings on my mandolin for awhile now and enjoyed them the whole time. Elderly Instruments is practically my home away from home.

I think that's what makes it all the harder for me then to let you know that more than the quality of the tone and action on my mandolin, I care about the 1st Amendment and the due process of law. If you think someone is committing a crime, all the parties should have the chance to argue in court and let the law decide. That's the way the law *should* work. Not the government deciding to silence an accused person before a trial and no hope for one afterwards, which is what COICA supports.

I just wanted you to know that from here on out, my mandolin will have Thomastiks on it. They're more expensive to me, but it a vote with my dollar for what I believe in. I hope you reconsider your support of undermining the due process. It's a shame to see an honest company support such dishonest legislation.

Re: counterfeiting and law suits.

While I understand that protecting your company's name is important,what I dont understand is how an obviously intelligent man like yourself can so completely and utterly miss the implications of this law. You do understand that once they figure out that they can circumvent the Constitution, they'll do it again. And again. And again. Have you ever read 1984? A law like this could easily be a stepping stone to that kind of terrifying excuse of an existence. And each stepping stone will just be easier to make as they slowly strip us of even our will to speak out against what is happening. This is dangerous. Very, very dangerous.

Re: Re: Re: Re: Re: Re: counterfeiting and law suits.

They have to be charged with a crime, and ownership of seized property is not automatically transferred to the state.

Except in drug cases, where property can be seized and forfeited without any charges ever being filed against the person it was taken from. In such cases, the owner has to go to court and try and prove that their property wasn't used for or gained as a result of drug related business. This is reportedly extremely hard to do and most people never get their property returned to them.

In some areas, the police rely on asset forfeiture as a way to supplement their budgets, and the government appears willing to expand asset seizure and forfeiture to other "crimes" as well, such as copyright infringement.

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I don't believe this is actually a correct statement of the law, Terry. We've now cited numerous cases that all say seizing speech requires greater scrutiny. I find it odd that you keep denying this.

All those cases involving seizing materials that were allegedly obscene, not infringing copyright. True, both involve speech, but there's a distinction between how courts analyze them. Speech concerns are handled internally when it comes to copyright, as the Supreme Court has held twice (Eldred and Harper & Row) and as tons of lower courts have approached it.

In New York Times v. US, the Supreme Court alluded to permissible restraints based on copyright:

The Congress has authorized a strain of prior restraints against private parties in certain instances... Such orders can, and quite often do, restrict what may be spoken or written under certain circumstances. See, e. g., ... Article I, § 8, of the Constitution authorizes Congress to secure the "exclusive right" of authors to their writings, and no one denies that a newspaper can properly be enjoined from publishing the copyrighted works of another.

The court in Jondora Music Publishing v. Melody Recordings, 362 F.Supp 494, explicitly rejected the application of some of those numerous cases you cited to to a copyright seizure case:

On the constitutional issue, defendants further state that a seizure and impounding of their duplicating material without an adversary hearing prior to the seizure is a clear violation of the defendants' rights under the first amendment, citing Quantity of Copies of Books v. Kansas ... and Freedman v. Maryland. Since defendants concede they copy the creative works of others I perceive no first amendment issue.

Also see Duchess Music v. Stern, 458 F.2d 1305, where the 9th Circuit upheld the seizure of 25,000 allegedly infringing tapes pending a hearing on the merits.

Other courts have been even less generous for those who raise the First Amendment in copyright cases:

We do not find any denial of freedom of expression to the "tape pirate". What he seeks is not the freedom to express himself artistically or otherwise, but the right to make exact and identical copies of sound recordings produced by others. We fail to see as any protected first amendment right a privilege to usurp the benefits of the creative and artistic talent, technical skills, and investment necessary to produce a single long-playing record of a musical performance. (US v. Bodin, 375 F.Supp 1265).

I know you don't agree with this distinction between copyright and other types of speech for first amendment purposes. But it is an accurate description of the law, so I stand by my statement.

That's not what Karl said. Karl noted that even when there were preliminary injunctions -- such as in Napster and Aimster, there was still an adversarial hearing in which those companies were able to present their reasons against the injunction. They may have lost, but a hearing was held.

Karl is wrong, and ironically arguing for less First Amendment protection than is currently given. Preliminary injunctions are rarely given in speech cases because they are not based on a final judicial determination that the speech is unprotected, only on establishing the likelihood that speech is unprotected. See Vance v. Universal Amusement, 445 US 308.

The same isn't true in copyright infringement cases. Preliminary injunctions are routinely granted, a la Napster, Aimster, etc. -- even in cases where defendants arguably have a fair use defense (New Line Cinema v. Bertlesman Music, 693 F.Supp. 1517).

Ah. So, please point me to where I can find OnSmash's content?
Oh, you can't?
Separately, as already noted, DHS explicitly claimed that its purpose was to block the speech on these sites. I'm not sure why you ignore that. You're playing a game that appears intellectually dishonest. You defend the seizures by pointing to the content on the site, but you ignore the content on the site when people point out that the First Amendment was violated.
You're defending the indefensible.

This is wrong. I'm not sure why you would state something that is flat out wrong, but you did. Karl has already pointed out why so I'm not going to repeat it.

Onsmash's new site shows up on the first page of Google results when you search for Onsmash.

As for your following points, I've explained above. As I also said above, you don't agree with the law, fine. But that doesn't make me 'intellectually dishonest' for describing the law.

Trademark infringement is identity theft

Just to be clear: I am against intellectual monopoly. But conflating draconian copyright and patent protections with draconian measures against counterfeiting and trademark infringement is a serious error. Counterfeiting and identity theft are completely unrelated to copyright and patent monopolies. Trademarks should be protected--this is a service that businesses want the middle class to pay for so that businesses can benefit without having to pay taxes to support the vast legal and judicial apparatus necessary to enforce it.

But the confusion surrounding intellectual monopoly conflates identity theft, which is one social evil, and rent seeking behavior codified and sanctioned in copyright and patent law, which is a completely different social evil. That abysmal confusion doesn't justify trashing due process.

Re: Re: Re: Re: Re: Re: Re:

You are new to the practice of law, so if I may let me provide you an insight gleaned from 32 years of practice.

It is difficult to engage in a cogent discussion with those who do not understand that of which they speak. It is impossible to engage in a cogent discussion with those who do not understand that of which they speak, and who have not the slightest clue that their understanding is plainly wrong.

Phrased somewhat differently, one can never engage in a meaningful debate with someone who does not know what he/she is talking about, and who does not know that he/she does not know.

Re: Re: Re: Re: Re: Re: Re:

You're leaving a lot out. One case was in 1972, the other in 1973, before copyright law was totally re-written. There were explicit seizure rules in Title 17 that do not exist today.

Furthermore: one of them was that, when something was being seized, "a copy of the affidavit, writ and bond are served" to the defendants - something that did not happen in the ICE cases. And unlike these cases, the defendants had an opportunity to contest the seizures. This is why the judge ruled in Jondora:

Here provisions exist to apply for relief from seizure. These are deemed sufficient to comply with Constitutional mandate.

No such provisions exist in the ICE cases. No affidavit, writ, or bond was ever served to the defendants. They still have not been given an opportunity to contest the seizures.

And the Jondora and Duchess cases are counterfeit goods cases. Those seizure rules only applied to the infringing copies, and to the equipment used to make them. An entire website, full of not even allegedly infringing expression, does not qualify for seizure. Neither does the domain name used to access that non-infringing expression.

New Line Cinema v. Bertlesman Music

Let's take a look at that case:

On August 17, 1988, the Court held an evidentiary hearing on New Line's motion for a preliminary injunction. [...] At the hearing, Benson and Harpster testified on behalf of New Line and Weiss and Claudia Ann Carli, Vice-President of Artist Development of Jive Records, testified on behalf of Zomba.

So, there was indeed an adversarial hearing prior to the preliminary injunction. Exactly like there was in Napster and Aimster, and exactly unlike the ICE seizures.

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I did. Will you apologize and admit you were wrong? Doubtful.

A reasoned, calm and factual response to such a clearly well thought out, cutting and insightful challenge? I mean... "liar!", wow I'm in awe of the erudition. Why wouldn't (s)he respond?
I think you will find they probably read your response (if at all) as "Blah blah blah piracy is great and I hate the government blah blah blah". It's amazing what you can make words do isn't it? :-)

I fervently hope

that publication of this list - and updates, as other would-be internet censors come to the fore - has the desired effect. All the talk from the US State Department and Google - to name just a few - on their dedication to a free exchange of information and their castigation of, e g, China for censoring sites that government dislikes, while ignoring the ever increasing tendencies to censorship at home. The only effective means of countering these restrictions on basic freedoms is to hit their sponsors where it hurts - in their wallets. Boycott these firms - and tell your friends to do the same !...
Henri

Re:

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"Garden variety theft is NOT free speech."

If you'd read the article you would know that the affected websites included blogs who had been sent the 'infringing' content by agents of the copyright holders. You don't do the argument that copying is theft any favours by getting everything else wrong.

Re:

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"I don't know that a label employee sending a file to a blog owner "known" (by whom?) to distribute files is enough to constitute a content distribution license on behalf of the record label. The blogs would have to prove(in court) that they had an implied license with someone who was an authorized agent of the label, and thereby had the power to grant digital distribution licenses on behalf of the organization. Proving as much would be exceedingly difficult."

If that were the case then why didn't they just request that the site take down the content? If the only content on the site is the stuff their agents sent then they could stop sending content and request they take down the existing content. Why would it be necessary to seize the domains for a site that had not even been informed that it was infringing? If what you said were true then they would be better off letting users post actually infringing content, because then they would have to receive a DMCA notice to take down the specific content, rather than having the domain seized.

I really don't get how people can defend seizing the domains of sites that have not even been informed that they are infringing. It's like looking into an alternative reality where the DMCA wouldn't fit in at all.

Re: Re: Re: Re:

If the only content on the site is the stuff their agents sent...

That wasn't the "only" content on the sites... not even close. Torrent-finder.com did not provide links to movies submitted by the studios. The blogs and sites were used overwhelmingly to post unlicensed content. If the site owners go to court to fight the seizure, they will have to show that the content was in fact licensed (or otherwise legal). Even in the remote case where files were sent by label employees, they will not prevail in doing so.

Re: Re: Re: Re: Re:

"That wasn't the "only" content on the sites... not even close."

Unfortunately I can't check this, because the domains were seized. Regardless, I don't get how you can claim that what was in the affidavit doesn't matter at all. What is the point of the affidavit including any examples if they don't have to be evidence of actual infringement? You are still supporting the notion that Techdirt could have its domain seized if someone filed an affidavit claiming that it posts infringing content and backed it up with examples where Mike has linked to content he is reporting on. What is the point of fair use if it regardless of whether a court would find something fair use, the domain name could be seized immediately based only on the accusation?

Whatever technicalities you care to argue over, as Mike has pointed out, you are defending the indefensible.

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

You know, I can understand all these AC's who come on here and spread lies. They're reactionaries, and at least a couple are resentful recording industry employees.

I thought you would know better, though.

I can't speak for Mike, but my "agenda" is mostly driven by the fact that I'm a noise artist.

First of all, absolutely the most important thing to any artist is free expression - especially if (like me) your expression is not particularly popular. I know of many artists who were outright censored (Mike Diana) or were prosecuted for "obscenity" (Jim Goad, Dead Kennedys). The fact that the government crossed out "obscenity" and wrote in "copyright infringement" doesn't mean it's not still censorship.

And I want these sites up because they are incredibly useful to musicians. Obviously, other musicians agree - since one of the sites was sent music by the labels themselves, and another's "infringement" was partly DJ sets and remixes, used by artists to break into the rap scene.

I also don't want the public to think that "sharing" is "stealing.". I don't want the threat of a lawsuit hanging over their heads if they try to make my art more valuable by sharing it.

Aside from that, my "day job" was the print industry. It's an industry that was devastated by the digital age - I've been unemployed for a while now because of it. So I know exactly how the labels must feel. But none of the print industry's problems are due to piracy, and the labels are failing for exactly the same reason: people don't need to physically manufacture and distribute information anymore.

I have very personal reasons and experience for why these seizures were bullshit. They didn't help artists, they attack free expression, and they won't help an industry that is dying in any case.

You can find the sites still, because their content still resides on the servers, including all of their forum and blog content. This site has highlighted the fact that many of the sites simply purchased new domain names. And as was discussed above, a simple Google search will take you to these new domains.

Regardless, I don't get how you can claim that what was in the affidavit doesn't matter at all.

I never said it didn't matter at all. I said that it was relevant to the standard of proof necessary for the seizure.

What is the point of the affidavit including any examples if they don't have to be evidence of actual infringement?

Back to my original point, they are infringing. An e-mail from a record label employee does not consitutes a valid content distribution license. Even if you disagree with this point of law, a judge could easily find the standard for the seizure was met given these facts.

Whatever technicalities you care to argue over, as Mike has pointed out, you are defending the indefensible.

Things are rarely so black and white, especially when it comes to issues of constitutional law. We disagree, and that's okay.

Re:

"You can find the sites still, because their content still resides on the servers, including all of their forum and blog content. This site has highlighted the fact that many of the sites simply purchased new domain names. And as was discussed above, a simple Google search will take you to these new domains."

And the site appears to be full of embedded videos and links to other sites. Not unlike Techdirt, really.

"never said it didn't matter at all. I said that it was relevant to the standard of proof necessary for the seizure."

If you genuinely believe that then you presumably believe that any website linking to copyrighted content for fair use can have their domain seized. If not, why not?

"Back to my original point, they are infringing. An e-mail from a record label employee does not consitutes a valid content distribution license. Even if you disagree with this point of law, a judge could easily find the standard for the seizure was met given these facts."

Except that they don't appear to be hosting any content, only linking to it. At most they are guilty of contributory infringement, which would be highly contentious in light of the encouragement by the rights holders. Presumably they wouldn't sue themselves, but it would seem a pretty strong defence against contributory infringement that their partner in crime was the VP at the label. Considering the lack of successful cases brought against contributory infringement I'm not even sure they could argue probable cause in the 'best' of circumstances.

My understanding is that probable cause is the same concept used to determine whether a home can be searched. Would it be OK for them to search your home because you had been accused of talking to your boss about stealing office supplies, considering that your boss had initiated the conversation?

"Things are rarely so black and white, especially when it comes to issues of constitutional law. We disagree, and that's okay."

Perhaps when you can explain the points above, then add on the issues about the first amendment, then I can agree to disagree. In the mean time I am compelled to keep asking questions. If you really want to placate me then you could admit that whatever you believe the legalities to be, some of those domains should not have been seized.

How convenient that the Comcast/AT&T/Yahoo's of the world can buy up and fire their opposition, and throttle their users bandwidth as frequently as there are days, and then assure their corporate names are striken from the records of those abusers.

We could argue for ages about whether piracy is wrong or good. I think piracy is wrong because it is not a victimless crime. Every time you pirate, you use a product that you are not supposed to use, and that allows copyright cartels to compete with CC / Free software unfairly (as it artificially decreases their price, without really decreasing it). You are then sabootaging the market share of artists and developers that would otherwise be rocking because of their competitive pricing (you know, indies that release their music much cheaper than disco labels, or open source developers that share their work with all the world). The unfair competition, ends up discouraging these people and promotes the domination of the music, software and TV giants.

BUT, this is not about piracy being wrong or good. Piracy is already illegal and there are already methods to stop it in the web THROUGH the justice system. What this bill does is make courts unnecessary for the matter and instead hands an off switch to companies which they can use not only against pirates, but also against competitors. It also enables the government to shut down sites they don't like. IE: wikileaks would be much easier to kill if all it would take the US government was to terminate any domain name without a court order.

Re: Re: Re: Re: Re: Re: Re: Re:

I'm dying to know what you think the holding in Arcara was then. Closing down a book store doesn't involve free speech?

You're leaving a lot out. One case was in 1972, the other in 1973, before copyright law was totally re-written. There were explicit seizure rules in Title 17 that do not exist today.

The copyright law changed, but the Constitution didn't.

Furthermore: one of them was that, when something was being seized, "a copy of the affidavit, writ and bond are served" to the defendants - something that did not happen in the ICE cases. And unlike these cases, the defendants had an opportunity to contest the seizures. This is why the judge ruled in Jondora:

Here provisions exist to apply for relief from seizure. These are deemed sufficient to comply with Constitutional mandate.

No such provisions exist in the ICE cases. No affidavit, writ, or bond was ever served to the defendants. They still have not been given an opportunity to contest the seizures.

The domain owners were given notice and were given opportunity to contest. Additionally, the due process safeguards afforded to property owners in seizure cases are stronger than they were back then. Prior to CAFRA, the government needed to only prove probable cause before property was forfeited. Now they have to prove by a preponderance of the evidence. Prior to CAFRA, the "innocent owner" defense was not available, now it is. Those cases were upheld as Constitutional under far less stringent procedural safeguards.

So, there was indeed an adversarial hearing prior to the preliminary injunction. Exactly like there was in Napster and Aimster, and exactly unlike the ICE seizures.

I don't know why you're ignoring my previous point, but I'll say it again: in non-copyright speech cases, preliminary injunctions are seen as impermissible prior restraints. Yes, both plaintiff and defendant can make their case, but the decision to grant a preliminary injunction is based only on the likelihood that speech is allegedly unprotected. It is only with a final judicial determination that speech can be blocked without running afoul of the First Amendment.

To say that the mere opportunity to contest a preliminary injunction in noncopyright speech cases satisfies the First Amendment goes against the vast majority of case law and does damage to free speech.

In other words, why do you think the fact that the defendants had the chance to testify before the issuance of a preliminary injunction in New Line Cinema satisfies the First Amendment when courts have repeatedly struck down preliminary injunctions in libel and obscenity cases even though defendants had the same chance to testify?

due process ( NOT doo-doo process )

to all of the entities supporting such a policy of censorship, i am compelled to ask "what is wrong or lacking with the current 'due process' and/or need to show 'just cause?'"
if you are unable to meet that criteria, perhaps your push is un-American and anti-freedom of expression. if corportations can be seen as "people" with all the rights but none of the responsibilities, how can you possibly seek to silence any entity ? ? ?

Re: Re:

And the site appears to be full of embedded videos and links to other sites. Not unlike Techdirt, really.

You do realize that you shifted the conversation to something entirely different, right? You stated earlier that you couldn't find the sites at all, but now you seem to admit that you can find them, and that they contains links. And now you're talking about the liability for the links. I'm not chasing you down that rabbit hole.

If you genuinely believe that then you presumably believe that any website linking to copyrighted content for fair use can have their domain seized. If not, why not?

You're doing it again. You misstated my position, I corrected you, and now you've shifted the conversation again by inventing another argument I never made.

At most they are guilty of contributory infringement, which would be highly contentious in light of the encouragement by the rights holders.

You again erroneously assume that the majority of music, movies, and other files linked to on these sites were licensed by the owners or otherwise legal. They weren't (and still aren't). These sites induced copyright infringement on a large scale (double check the sites if don't believe this). There was more than enough evidence to seize the domain names, and there is nothing preventing the site owners from continuing their activities on another domain. If they want the old domains back, they are free to argue that their content is all fair use, licensed, etc. in court.

Perhaps when you can explain the points above, then add on the issues about the first amendment, then I can agree to disagree. In the mean time I am compelled to keep asking questions. If you really want to placate me then you could admit that whatever you believe the legalities to be, some of those domains should not have been seized.

I'm not here to "placate" every concern, idea, or thought you have with respect to the constitutionality of domain name seizures. I simply set out to correct an incorrect statement of law which is that an email from a record label employee constitutes a digital distribution license on behalf of a record label, magically making any and all distribution of those files legal.

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"You do realize that you shifted the conversation to something entirely different, right?"

Are you suggesting that I've gone off topic somehow? Your explanation wouldn't appear to support that.

"You stated earlier that you couldn't find the sites at all, but now you seem to admit that you can find them, and that they contains links."

Yes, I found them after a Google search. Not an arduous task I admit, but the point was that seizing a domain name name has an effect on freedom of speech (however small). I don't even know for sure that the sites I'm looking at are the ones that were seized, I'm fairly sure, but if this was common practice then I would assume that any similar domain names may be hijacked by people wishing to exploit the traffic as soon as a seizure took place.

As repeatedly pointed out, this is the admitted intent of the seizures (to deny access) and the only reason that they're able to pop up again under another name is the lack of influence over non .com registries. Are you suggesting that impotence should excuse an attempt by the government to violate the rights of its citizens? Oh sorry, you don't like me wondering what you're thinking; I'll rephrase: should impotence excuse an attempt by the government to violate the rights of its citizens?

"You're doing it again. You misstated my position, I corrected you, and now you've shifted the conversation again by inventing another argument I never made. "

Let me restate: how is this different from a site having its domain seized for linking to copyrighted content for fair use?

"You again erroneously assume that the majority of music, movies, and other files linked to on these sites were licensed by the owners or otherwise legal."

I'm assuming that they haven't been taken to court and found guilty of anything. Plus, how come Youtube's domain doesn't get seized? They actually host infringing content. The only difference I can see is that Youtube likely have a large legal team who would point out that they cooperate with any copyright holder who bothers to file a proper DMCA notice.

"I simply set out to correct an incorrect statement of law which is that an email from a record label employee constitutes a digital distribution license on behalf of a record label, magically making any and all distribution of those files legal."

If your message is to stop promoting anything that isn't under a copyleft licence then I'm right there with you. Or would be, if that sort of bullshit didn't just get in the way of listening to and supporting the music I like. I'm all for artists rights; I just don't think infringing on other peoples free speech, which is the cornerstone of artistic freedom, is a good thing.

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Are you saying the "pirates" on their computers (a little off topic but..) needed an exec's nose? I don't think they go near the exec. The "pirates" exchange information with each other. How does passing on a nonsecret constitute a violation of someone else?

Please be more clear.

In any case, the justification the courts have used is that "original" free speech is protected, whatever that means. Of course, even this interpretation fails if it would be the case that progress is not promoted as required by the Constitution. [Note the fair use exception for learning, for example. Don't stifle someone's learning activities.]

I don't think progress is promoted when copyright lasts anything but a relatively short time. 100 years is not relatively short. In fact, with the Internet: cheaper and faster spreading of information and commerce, our copyright today would be expected to be shorter than at the time the law was passed at the end of the 18th century. Instead it is much longer.

It's only a matter of time. Copyright will have to be changed significantly. And people will support it once they see that in fact you can make money without copyright; however, it would then become more difficult to make money if the crowd doesn't respect you or you offer little of value that isn't merely information they can tell each other for free (aka "pirate"). People pay for worthwhile scarce resources of quality. People even pay for information, but then they demand the right to share what they learned.

BTW, if you didn't catch on, digital information is just that information. It is not tangible. It is information you can feed (one bit at a time if you love torture) to software applications on a computer in order to recreate a particular image, sound, etc. Information can be "reused" without limit. It is not a scarce item.

I will be supporting these companies even more so now, thanks for the list. As long as child pornography exists on the internet, I will support the regulation of it. Regulation isn't "censorship." People weren't this stupid when television was introduced. Imagine a bunch of idiots clamoring for child rape in the 1950's, and then screaming like toddlers when someone attempts to remove it. The best part is how doing ANYTHING to the internet is a violation of the 1st Amendment. Um, the internet didn't exist back then, and if the founding fathers had seen what a bastion of stupidity and human rights violations it is, there would have been several regulations put in place to police it.

Enter your zip code here

Millions of people worldwide have to deal with sinus problems that are usually accompanied by facial pain and terrible headaches, clogged nasal passages and constant feeling of discomfort. So, how to use a neti pot ? Unfortunately, you will not manage to find any official medical guidelines on its use, but this supply is usually provided with inserts that explain how to use it. If you want to know more details on proper use, go on reading.

Piracy apologizing

Even after 10 years of the fabricated piracy scare, calling Mike a piracy apologist doesn't have the same sting as calling someone a Communist in the late 1950s, because today, "piracy" is a fancy word for ripping somebody else's CD. Even if he were an apologist for that, so what? We have a right to do many actions that are labeled "piracy" by certain lobbyists. Most are not illegal.

I am personally against distributing someone's copyrighted work without their permission. But that's not what we're talking about anymore.

There are a lot of people who would love to curb Internet communications under the guise of fighting "piracy." That's why they push the false idea that it's a problem.